Q & A on the UPF Lawsuit

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Jun 11, 2017 No Comments ›› orepa

A question and answer session with Ralph Hutchison, coordinator of the Oak Ridge Environmental Peace Alliance

 

Q. Before we begin, can you give us a little background on how you reached this point?

A. Well, OREPA has been tracking the UPF since it was first announced in 2005. In fact, we have been dealing with the question of the modernization of the nuclear weapons complex, including the Y-12 bomb plant in Oak Ridge, as far back as 1991, when the government hatched a plan they called Complex 21—the nuclear weapons complex of the 21st century. One after another, variations on this theme came and went, with public hearings, federal register notices, announcements. There was Complex 2030, the there was Complex Transformation. And now it’s just “modernization”—a trillion dollars over the next 30 years.

Q. How does the UPF fit in?

A. The UPF has been called the “tip of the spear” of the whole modernization plan. Because so much hinges on it. New bombs can’t be made without the thermonuclear core—called the “secondary”—so without the UPF, a lot of the other modernization is mooted.

Q. And how did this lawsuit come about?

A. Well, we have done all the usual things—written letters, gone to Washington, DC, organized big turnout for public hearings—nothing changed. So we always knew this was a last resort. It was daunting though, because we are a small grassroots group. Lawsuits are expensive, and complicated. Fortunately our friends at Nuclear Watch New Mexico had experience. For the past several years, we have been collaborating, building the case, filing Freedom of Information Act requests, talking to legal advisers. Without NWNM, I don’t know that we would have gotten to this place.

Q. Okay, so why are you suing the government?

A.  The short answer is because they are breaking the law. The National Environmental Policy Act (NEPA) requires any government agency that is contemplating a major project to prepare an Environmental Impact Statement that must do two things: 1) analyze how their proposed action will impact the whole of the human environment, and 2) involve the public at key points in the process.

Q. You say they are “breaking the law.” Why didn’t they do an Environmental Impact Statement?

A.  Well, they did, in fact complete an Environmental Impact Statement, in 2011. It was called the Y-12 Site-Wide Environmental Impact Statement, and it included plans for the Uranium Processing Facility bomb plant. At that time, the plan was to build one huge new facility—this became known as the “Big Box UPF”—that would house all the enriched uranium operations at Y-12, including processing uranium, doing stockpile surveillance and maintenance, manufacturing new bomb parts, and dismantling retired warheads.

The problem came when they changed the plan, dramatically, in 2015. In an effort to spread out the cost, they decided to build five new buildings and continue to use two deteriorating buildings for dangerous uranium operations. The rules for NEPA say that whenever there are significant changes to a plan or new information that could alter the environmental analysis, the agency—in this case the National Nuclear Security Administration—must revisit its old EIS to see if it is sufficient to cover the new plan.

Q. Did they do it?

A.  Not right away. OREPA and Nuclear Watch New Mexico, our collaborators through this whole process, wrote letters to the head of the NNSA and the person responsible for NEPA compliance at NNSA in 2015 outlining our concerns and bluntly calling for a new EIS.

Q. What was their answer?

A.  We never got an answer. Our letters were not acknowledged.

Q. But I thought you said “involve the public” was a key part of the NEPA law…

A,  That is not a question, but your point is a good one. In fact, courts have historically considered both “legs” of NEPA to be of equal value. It is really hard to challenge an agency’s environmental analysis. As long as they can persuade a judge they took a “hard look” at an issue, they will prevail. Judges tend to defer to the government, assuming that with all its resources and experts, it knows better than a few members of the public.

On the other hand, the agency does not get to ignore the public. There are key points at which public hearings are required by the letter of the law, and the government is also required to respond in writing to comments from the public. The spirit of NEPA rests on an understanding that the public’s contributions are of value to the government; we, the public, help the government make the best decisions.

Q. Well, if you wrote those letters in 2015 and they ignored you, why didn’t you sue them then?

A.  We couldn’t. After we wrote our letters, we decided to push harder. So we (OREPA and NWNM) filed a Freedom of Information Act request asking them to send us the Supplement Analysis—a document that would look at the 2011 EIS to decide whether it is still good enough or whether they have to prepare a new one. This is a legally required document, and we suspected they were moving ahead with their plans without producing one.

Their answer to us was “The document does not exist.”

BUT, they told a local reporter—not us—that they were, in fact, preparing a “Supplement Analysis.” So we had to wait to see what the outcome of the SA would be. They could say the old EIS was good enough, they could say they would prepare a new one, or they could split the difference and prepare a Supplement to the old EIS that just analyzes the changes in their plan since 2011 and the new information.

Q. Well, what did they do?

A. More than a year later, in July of 2016, they finally released their Supplement Analysis. In the meantime, mind you, they had pushed ahead, spending more than a billion dollars designing the new UPF plan. No surprise, their Supplement Analysis said the old EIS was still good. And a few weeks after that, they published an Amended Record of Decision in the Federal Register, giving themselves the green light.

BUT, buried in the Supplement Analysis was an interesting line. It said two of the old buildings in which they would continue to conduct enriched uranium operations for the next 20-30 years did not meet current environmental and safety standards. Those buildings, the NNSA wrote, would NOT be brought up to code because it would be “cost prohibitive.”

Q. Yikes! So that’s why you are suing them?

A.  That and a host of other reasons that we can’t really detail yet. But when the lawsuit is filed, hopefully later in June, we can talk more about it.

Q. What about the argument that they really need this bomb plant to maintain our national security?

A.  I have two answers for that. One is straight out of their first EIS where they admit they can completely fulfill their mission to keep the stockpile safe, secure and reliable with a capacity to manufacture less than ten nuclear secondaries a year. This would be to replace secondaries that were destroyed or damaged during routine surveillance. But that’s not the UPF we are fighting—we are fighting a monstrously expensive facility that will have the capacity to produce 80 thermonuclear cores per year. The only reason for that is to make new-design nuclear weapons.

The second answer is this: The first plan they had, to make a Big Box UPF, was derailed when the cost projections went from $600 million dollars—the low end of their original cost projection of $600million to $1.5 billion—to 19.8 billion dollars. Somewhere in there they passed a marker that made it too expensive to build. So they refigured the bomb plant to get the price tag down, at least for now, to $6.5 billion.

Now consider this—the defense budget is hundreds and hundreds of billions of dollars every year. If the UPF bomb plant were really needed for national security, it would be built at any cost, just like aircraft carriers and nuclear subs are. $19 billion, spread out over 15 years, is a rounding error in US defense spending. The fact that there is a limit to what Congress will spend is a clear sign the bomb plant is not needed for national security.

Q. Who are your lawyers?

A.  Until we file, we are just saying this—we have a team of public interest lawyers based in Washington, DC, who are highly experienced in NEPA and environmental law.

Q. What does it cost for a lawsuit of this kind?

A.  That’s not easy to predict. It depends on how many motions the government makes and how many we have to respond to. It could easily run into the hundreds of thousands of dollars.

Q. Where will you get that kind of money? I looked at your annual budget and you’ve never raised more than $75,000 in a year!

A.  The law firm has been very generous to us. They cut their hourly rate in half and then they capped the amount they will charge us. This crowd-funding campaign will raise funds for the legal team, for experts, and, if we raise the full amount, for professional media help.

It is a lot of money for a group like ours, but the Board of Directors took a firm and bold decision. “This is a defining moment,” said our Board President, Bill Myers. Another Board member said, “We can’t look back and say we didn’t do everything we possibly could.”

But obviously, we are depending on everyone who wants to stop nuclear weapons production to join us in supporting the lawsuit. That’s what the Donate button is for.

Q. It sounds like the story of the UPF is a long one. How can I learn more about it?

A. Two answers to that. One: there are UPF Updates stretching back over the last couple of years that we published as information came out. You can find them by scrolling down to the bottom of this page. Two: The Knoxville News-Sentinel’s Frank Munger documented the entire tale of the UPF for the newspaper up until his retirement last June. You can still find his Atomic City Underground blog if you go to the News-Sentinel’s web site and search. Once you get to the blog, you can search for UPF to see the articles.

 

 

 

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