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For immediate release July 1, 2011
Study Group Resumes Litigation against
Proposed $6 Billion LANL Plutonium Facility
Notice Filed Today in Tenth Circuit Court of Appeals
Contact: Thomas M. Hnasko, Hinkle, Hensley, Shanor and Martin, L.L.P., 505-982-4554
Greg Mello, 505-265-1200 (office), 505-577-8563 (cell)
Santa Fe and Albuquerque, NM – The Los Alamos Study Group today filed a Notice of Appeal to the U.S. Tenth Circuit Court of Appeals in Denver in its litigation against the Department of Energy (DOE) and the National Nuclear Security Administration (NNSA) to block final design and construction of a huge new plutonium facility at Los Alamos National Laboratory (LANL) pending a study of alternatives to the $6 billion project.
Construction of this one building is expected to cost at least ten times as much, in constant dollars, as any government project in the history of New Mexico, with the exception of the two interstate highways that cross the state.
A Study Group lawsuit filed last August claimed the Obama Administration had not written an applicable environmental impact statement (EIS) for the project, the cost, material requirements, and impacts of which have all grown considerably since the project was first conceived.
Judge Judith Herrera dismissed the lawsuit on May 23, 2011, without allowing discovery or holding a hearing on the merits of the case, saying the case was “prudentially moot” and “not yet ripe” because the federal agencies had, during the course of litigation, promised to complete a supplemental environmental impact statement (SEIS) for the project components which remain to be built.
The Draft SEIS dismisses all alternatives to the project.
The project as a whole is called the Chemistry and Metallurgy Research Replacement (CMRR) facility. The CMRR project consists of two buildings, the Radiological Laboratory, Utility, and Office Building (RLUOB), which is being outfitted for occupancy, and the Nuclear Facility (CMRR-NF), on which construction has not begun apart from some initial excavation.
CMRR has received $787 million (M) in federal appropriations to date, of which $458 M has been for CMRR-NF.
Further legal details of the Appeal will be available (posted here) as they are filed.
Study Group Director Greg Mello: “We will respectfully assert that Judge Herrera’s decision was not well-founded in law.”
“This project’s name contains the word “replacement” but much more than that is involved. It is be the anchor facility in a new plutonium production complex. It is also entirely unnecessary, were maintaining existing warheads for many decades to come the goal. Instead the project is being justified on the basis of the assumption that large quantities of new kinds of warheads will be produced. The most dangerous processes in that new production are to be here at Los Alamos, where these unnatural hazards are to be added to the site’s natural hazards of earthquake and fire.
“The authors of this proposal know full well that federal funds are growing scarce. LANS, the LANL contractor, stands to gross billions on this project, so they want to get their straw in the flow of funds before the river runs dry. The bigger the project and the faster it starts, the better for them, so they and NNSA don’t want to look seriously at the reasonable alternatives that have appeared over the past decade.
“The Democrats on our congressional delegation are trying to hide from the public by supporting a bogus SEIS process, which examines no alternatives and resolves nothing. They are selling out the state’s future with their permissive silence, the motivation for which is surely pecuniary, given how the great need for cash in our political campaigns. This project directly competes for appropriations with renewable energy and the jobs, environmental benefits, and security those could bring us, raising questions about what priority New Mexico Democrats really give such popular concerns.
Mello: “We will pursue every avenue to stop this project, for the sake of our young people, our environment, and our economy.”
The Study Group will be hosting a public discussion of the merits of the project in Los Alamos at Fuller Lodge on July 19th at 6:30 pm. NNSA has declined to take part.
DOE and NNSA propose to construct a new building, the CMRR-NF1, currently expected to cost $4.7 to $5.8 billion (B),2 for the primary purpose of increasing the rate of manufacturing nuclear warhead cores (“pits”) at LANL.
The expected cost of this facility has increased more than tenfold since its conception.3 The required plutonium storage and handling capacity in this facility has increased from 900 grams in 2000 and 2001 (denoting a Hazard Category III facility) to 6,000 kg today.4
The Study Group has recently provided to Congress extensive background on why this facility is not necessary, and especially not necessary now.5
What was described as a relatively simple building in a 2003 EIS written under the National Environmental Policy Act (NEPA) for the CMRR project6 has subsequently become a very complex and expensive proposed project. It now has twice the original gross floor area, more than one hundred times the original quantity of concrete, a far longer construction and occupancy schedule (not ready for use until 2023), eight times the original electricity consumption (necessitating new or reworked transmission lines into Los Alamos County), and many other expansions.7
As a result of these unforeseen design complexities and expansions, the project currently lacks a final design concept. Two concepts are under consideration: a relatively shallowly-buried building, the foundation of which would be above a thick layer of unstable volcanic ash, and relatively deep one, founded below that unstable layer on welded tuff.
In the Draft SEIS and elsewhere, DOE and NNSA generally insist that the current CMRR-NF requirements, location, size, and timing cannot be changed. Very recently, however, NNSA Deputy Administrator for Defense Programs Don Cook recently warned that “As we go on, if the cost starts to get near the upper end [of the stated cost range], that will be a clear point for invitation to cut scope.”8
The House Appropriations Committee (HAC) has recommended $100 million (M) less appropriation than the FY2012 request and no construction in FY2102, pending resolution of major seismic issues, revalidation of requirements, and a decision on whether the LANL management and operating (M&O) contractor is the appropriate entity to manage the project.
Project 04–D–125, Chemistry and Metallurgy Research Replacement (CMRR), Los Alamos National Laboratory.—The Committee recommends $200,000,000, $100,000,000 below the budget request. The Committee fully supports the Administration’s plans to modernize the infrastructure, but intends to closely review the funding requests for new investments to ensure those plans adhere to good project management practices. The latest funding profile provided to the Committee indicates that over half the funding requested for the Nuclear Facility would be used to start early construction activities. The recommendation will support the full request for design activities, but does not provide the additional funding to support early construction. The NNSA is not prepared to award that project milestone since it must first resolve major seismic issues with its design, complete its work to revalidate which capabilities are needed, and make a decision on its contracting and acquisition strategies.9
This $100 M cut is 90% of the Committee’s proposed cuts in NNSA construction, meaning the HAC is almost uniquely targeting CMRR-NF for cuts among all proposed NNSA construction. NNSA had requested $270.1 M for CMRR-NF specifically, the balance of the requested $300 M CMRR budget line to be allocated to completing the first CMRR building, the RLUOB.
In its introduction to its markup of the NNSA budget the HAC wrote, in a passage especially germane to NEPA compliance:
It is incumbent upon the experts at the NNSA to provide a range of options which would meet defense requirements and to ensure that a range of alternatives are considered, taking into account the DOE resource implications of each alternative.10
In his opening remarks Subcommittee Chairman Rodney Freylinghuysen (R-NJ) said the proposed bill would cut out from the Administration’s request for nuclear warheads
…hundreds of millions of dollars for construction projects that are not ready to move forward, capabilities that are secondary to the primary mission of keeping our stockpile ready, and yes, slush funds that the Administration has historically used to address its needs. The recommendation before you eliminates these weaknesses and it is responsible.11
In late April DOE and NNSA produced a Draft Supplement to the 2003 CMRR EIS. Despite all the above concerns, the Draft SEIS examines no alternatives to the CMRR-NF, which it has already decided to build.
Study Group Director Mello: “Despite extensive prior communication and comment from many parties, these two agencies incorrectly and we believe illegally relegate NEPA to a footnote in the engineering design process for a predetermined agency decision to construct a building of certain precise capabilities, size, and requirements, in a precise location, at a precise time (now).
“DOE and NNSA’s failure to conduct a full analysis of alternatives to the CMRR-NF project as NEPA requires risks not just billions of dollars in excess spending but also the effective management of NNSA’s nuclear weapons programs, and the safety of the agency’s workers.”
2 White House, “November 2010 Update to the National Defense Authorization Act of FY2010 Section 1251 Report; New START Treaty Framework and Nuclear Force Structure Plans,” http://www.lasg.org/CMRR/Sect1251_update_17Nov2010.pdf.
3 See table of changed value in Mello affidavit of January 14, 2011, paragraph 86, at http://www.lasg.org/CMRR/Litigation/Mello_aff3_14Jan2011.pdf. Earlier cost and completion date estimates ($375 M, by FY2008) can be found in the “LANL Comprehensive Site Plan [CSP] 2001,” LAUR-01-1838, July 2001, p. 110, at http://www.complextransformationspeis.com/RM_141%20-%20LANL%202001b.pdf. For completion date slippages, see references at Mello paragraph 86, ibid.
4 LANL, “Comprehensive Site Plan 2000, p. 33, Tab 2 of references to Mello prepared testimony of April 27, 2011, http://www.lasg.org/CMRR/Litigation/Mello_refs_27Apr2011.pdf. Also, LAUR-02-1786, September 2001, LANL "Ten-Year Comprehensive Site Plan," Table II-2, p. 1, Study Group files.
5 LASG, May 23, 2011 memorandum to interested parties, “The [CMRR-NF at LANL] should not be built. Even if CMRR-NF were to be built eventually, it should be delayed now. Longer delay would bring greater net benefit – in dollars, program continuity, decreased management risk across the NNSA complex, and otherwise.” Available at http://www.lasg.org/CMRR/Mello_Reasons_to_Delay_CMRR-NF_22May2011.pdf.
7 Summarized in Mello affidavit of October 21, 2010 (to that date), http://www.lasg.org/CMRR/Litigation/Mello_aff1_21Oct2010.pdf. Subsequent court submittals and the CMRR-NF Draft SEIS contain further revelations.
8 Quoted by Todd Jacobsen, “NNSA Weapons Chief: UPF, CMRR-NF To Meet Budget, Or Risk Scope Cuts,” Nuclear Weapons and Materials Monitor of June 17, 2011.
9 FY2012 Energy and Water Bill, Full Committee Report, p. 131, at http://appropriations.house.gov/UploadedFiles/FY_2012_ENERGY_AND_WATER_FULL_COMMITTEE_REPORT.pdf.
10 Ibid, p. 83.
11 Quoted by Todd Jacobsen, “Budget Battle Heating Up Over House Approps Cuts To Weapons Program,” Nuclear Weapons and Materials Monitor of June 17, 2011.