Judge Herrera will hear argument and evidence supporting two opposing motions: whether a) to throw out the Study Group's lawsuit, from the defendants; or b) temporarily pause the project, i.e. grant a "preliminary injunction," in order to give the court the opportunity to hear evidence on the Study Group's contention that the project cannot proceed without a valid, new environmental impact statement (EIS).
The National Environmental Policy Act (NEPA) strictly forbids any investment in a major federal project which could bias the agency toward approval of that project, or which involves irreversible commitments of resources toward the project, for example via contracts.
The full docket of court filings can be accessed at the Study Group website here. Considerable background on the project can be found at the group's CMRR web site, including links to defendants' documents.
The Study Group is being represented by Thomas M. Hnasko, Dulcinea Hanuschak, and their colleagues at Hinkle, Hensley, Shanor & Martin of Roswell, Santa Fe, and Midland and Lindsay Lovejoy of Santa Fe. Diane Albert, Esq. of Albuquerque has also been of assistance.
Defendants have said they plan to post today what they are calling a "Draft Supplemental EIS" (Draft SEIS). Plaintiffs have questioned the objectivity of writing such a document while at the same time promising full commitment to a single project alternative, and argue that such an approach cannot meet NEPA legal requirements for a variety of reasons summarized in their briefs and in Section E of this affidavit (pdf). What is needed to fix the situation can be found sketched at Section F there.
The present lawsuit is a continuation of a long process of external review and engagement with federal officials that now takes Study Group members to Washington DC for meetings with decisionmakers on Capitol Hill, in the Executive Branch, and elsewhere for a month or more every year.
A similar project proposed by DOE in 1988 was eventually canceled in 1990 after Senator Bingaman requested a study to check if it might be redundant.
The Study Group's approximately 2,000 members are not alone in this fight. In addition to its technical and legal work, the Study Group has at times engaged in broad political campaigns involving hundreds of organizations and thousands of people, all seeking an end to plutonium "pit" production, a halt to nuclear weapons innovation, and realization of long-standing disarmament obligations. Here are some of the New Mexico organizations (118), the New Mexico businesses (326), the Religious organizations and coalitions (57), and the National & International organizations (102) who were willing to join a 2007 campaign to achieve these ends, which find partial expression in the present lawsuit.
The Study Group and this lawsuit are supported by hundreds of smaller and medium-sized donors in New Mexico and elsewhere.
Recently, Everet Beckner, NNSA's Assistant Administrator for Defense Programs during the George W. Bush Administration who is now on the board of Pro2Serve, a prominent nuclear consulting firm, said that not pausing CMRR-NF to consider the implications of the Japanese nuclear crisis would be a mistake. He has particularly pointed out the dangers of a fire in the proposed 6 metric ton plutonium storage facility, a possibility which LANS, the Bechtel-led corporation that manages Los Alamos, has said it hopes to make impossible -- and therefore need not be analyzed. LANS is currently proposing omitting fire protection and confined ventilation system for the vault, among ten or more other major safety short-cuts now under secret review.
A plume from a big fire at this facility would contaminate a large swath of northern New Mexico, depending on the wind and other factors.
The shocking rise in estimated costs of the facility is best documented in Section D of this affidavit (pdf); some realistic alternatives are suggested at C and here (pdf).
LANS has very recently admitted that the safety of the existing plutonium facility -- much larger, in terms of usable space, and far more important programmatically to NNSA -- is more problematic than understood to date due to structural deficiencies in the building. NNSA has planned hundreds of millions of dollars in upgrades to the building and has carried out some of the initial work, but the need for major ventilation upgrades and now structural renovation raise new questions about the practicality of proceeding with everything at once: existing and planned new programs in the building, including new pit production and industrial-scale production of plutonium dioxide for mixed-oxide (MOX) reactor fuel, the production of additional kinds of plutonium pits and in much larger numbers than before, while also trying to fix the building in fundamental ways -- while also undertaking a giant construction project immediately adjacent to the facility, not to mention several "smaller" projects (in the $50-$300 million range) that NNSA hopes to start nearby as well. These other projects need to be completed at the same time as CMRR-NF or before in order to realize the "programmatic benefits" of CMRR-NF.
Despite promises from the Obama Administration to seek unprecedented levels of funding, considerable funding uncertainty remains. In addition, NNSA expects large increases in pension fund liabilities, close to $1 billion per year within 2 or 3 years (pdf, p. 16).
Study Group Director Greg Mello: "We are doing our best to provide the 'tough love' NNSA needs to avoid a fiasco at TA-55 -- and at the same time finally leave the Cold War behind. We now know that this site is subject to seismic shocks twice as great as those experienced at the Fukushima Daiichi plant. The full implications of LANL's challenging geographic situation are only slowly being assimilated by the federal bureaucracy and contractor community. Both DOE and NNSA operate with an almost unbelievable "culture of optimism," as defendants themselves name the problem. This leads to management failures again and again and has kept DOE and now NNSA on GAO's "Watch List" of agencies most susceptible to waste, fraud, and abuse each and every year for the last 20 years.
"Now, across the country, NNSA is attempting too much, too fast. The engineering base, the vendor base, the management, the nuclear-qualified workforce, do not exist. This project is one that isn't needed. At a minimum should be delayed to reconsider its merits. Or, even if you believe wholeheartedly in those merits and don't want to question them, it should be delayed as a prudent step to avoid what might easily become a fiscal and management train wreck in just two or three years.
"What is most important is the safety of existing facilities. This is what needs the talent, money, and management attention."
Greg Mello, Los Alamos Study Group 505-265-1200 (office) or 505-577-8563 (cell)
Thomas M. Hnasko, Hinkle, Hensley, Shanor & Martin, 505-982-4554 (office)