Top officials at the Washington State Department of Ecology ignored advice from their own staff last month when they imposed a small fine on the federal government and a major contractor over the 2012 release of radioactive materials at the Hanford Site.
In a review of more than 2,000 documents surrounding the case, the KING 5 Investigators found that Ecology officials were pressed by their inspectors to impose a major fine against the U.S. Department of Energy and CH2M Hill, a company heavily involved in the cleanup of the former plutonium production site. The documents were originally obtained through a request for public records by the non-profit group Hanford Challenge.
But instead of imposing “one of the largest penalties ever assessed at Hanford,” as advised by the inspectors, Ecology's leaders decided on a $261,000 fine, with all but $15,000 of that amount to be forgiven as long as Energy and CH2M Hill follow through on improving practices.
"Fifteen thousand dollars is budget dust for these people. It’s meaningless. It’s pocket change,” said state Sen. Adam Kline (D-Seattle). “I had hoped the Department of Ecology would do better than this.”
This is not the first time Ecology was criticized for being a sleeping watchdog at Hanford. A 2013 EPA audit of the state’s regulatory work at the site found the state had too few inspectors, did not perform required inspections, and that Ecology had an agreement with DOE to provide prior written notice of inspection plans at Hanford.
From 2004 to 2012, Ecology issued more than 4,500 enforcement actions against polluters across Washington for incidents such as oil spills and a refinery explosion. Yet in the same time period at Hanford, the state issued only 12 enforcement actions.
The case at the center of the KING 5 investigation began in February 2012 when Ecology inspectors were called to a spill of radioactive liquid from a large concrete container. The container is located in what’s known as the Central Waste Complex, part of the site’s 200 Area -- a storage complex for drums and containers filled with contaminated materials exhumed from shallow burial grounds once used by Hanford.
CH2M Hill workers assumed the 88,000 pound box in question contained only solid materials such as contaminated gloves and masks from Hanford's former plutonium production plant. Along with Energy Department officials, CH2M Hill managers repeatedly stated the liquid spotted by Ecology inspectors was coming from the outside the box -- the result of rain or snow melt.
But lab results showed fluids leaked from the container contained some of the worst toxic substances at the site, including PCBs, lead, mercury, beryllium, americium and plutonium. The container was sitting in the open air, unprotected, deteriorating on gravel. The dangerous radio nuclides and metals had leaked straight into the ground.
Ecology's investigation expanded beyond the leaking container, with state inspectors uncovering a host of other violations that Energy and its contractor had been cited for in the past. The violations included:
* Not reporting the spill of liquids right away in 2012.
* Not reporting that radioactive contamination was found on the exterior of the box in December, 2011.
* No leak mitigation efforts were undertaken for three days.
* The contractors didn’t have the equipment on hand to deal with the emergency.
* The gravel storage area was illegal – the DOE never sought permission to use the outdoor space for at least 500 other aging containers.
* The DOE hadn’t verified the contents of the boxes.
* The DOE was not conducting regular inspections on the boxes, which were not protected from the elements and were rusting and corroding.
* Dozens of drums in a nearby indoor facility were mislabeled – which led to another spill of hazardous waste and the injury of a worker.
The state investigation revealed the systemic and repeat nature of the violations.
“In 2005 compliance staff ... issued Administrative Order 1671 that cited many of the same issues,” wrote one inspector. “The repeat nature of the situation calls for an enforcement response that is definitive about Ecology’s expectations of compliance at the Hanford Facility.”
In addition, the EPA had discovered the illegal outdoor storage area in 2009 and in 2013 issued a Consent Agreement and Final Order in which the DOE agreed to a $136,000 penalty for that and other violations found yet again by the state investigation.
“The violations are systemic and demonstrate a pattern of non-compliance,” wrote state inspectors in 2012 as they urged their managers to impose substantive penalties as opposed to negotiating an agreement with the Energy Department. “USDOE and its contractors have yet to prove they are capable, serious, and truly interested in voluntarily complying with minimum requirements. We question why Ecology would once again negotiate the terms of complying with minimum requirements,” wrote the inspectors.
In October 2012 the state investigative team recommended a $1.26 million fine against Energy along with a recommendation to issue a unilateral enforcement action.
“The recommended penalty of $1,266,000 is within the range of penalty calculated by using all of the lowest and highest possible penalty amounts [as outlined in state regulations]. The resulting range is from $123,000 to $3,477,000,” wrote the inspectors. “The Hanford Facility has been tagged [by the EPA] as a significant non-complier for a number of years. Given the repeat nature of many of the violations and their common root cause, Ecology has substantial basis for issuing [this penalty].”
Despite the urging of the inspectors who conducted the investigation, their boss at the Department of Ecology, John Price, and his boss, Jane Hedges, struck a deal with the federal government that didn’t resemble anything similar to what their own experts recommended.
In 2014, two years after the completion of the investigation, the managers signed an Agreed Order with Energy, not the recommended unilateral action the state inspectors had endorsed. The order included the $15,000 penalty, with the possibility of $246,000 more in fines if Energy doesn’t live up to its promise to improve practices and increase training for employees on issues such as proper notification of spills.
“I think it’s just terrible. The fine could have been over $3 million and I think the profits of these corporations need to be dinged with an incident like this. If I broke a window at a bank I’d be put in jail, but these corporations go out and threaten public health –- environmental health, worker health and safety -– and nothing happens to the leaders of these corporations,” said Steve Gilbert of Physicians for Social Responsibility.
Ecology director defends actions
“We are taking it very seriously," said Maia Bellon, the Director of the Department of Ecology. “What we have to do is try to engage and change and we have to make a judgment call on what that change will do."
Bellon said she and her management team listened carefully to the advice of the Ecology inspectors who conducted the investigation. “I value and respect the hard work our investigators do. They have incredibly difficult jobs," she said.
But in defending the scaled back fine, Bellon said the department's management team must take a view from the “30,000 foot level” and impart a penalty that takes into consideration the big picture at Hanford, where the cleanup of radioactive waste is scheduled to last until late this century.
"Issuing a penalty simply to be punitive is not really a way to get behavioral change in terms of complicated, hazardous chemical waste," Bellon said. "We're trying to get behavior change and it's very clear with Department of Energy that we want them to be successful to be getting this work done and meet their obligations under state and federal law."
Kline, ranking Democrat on the state Senate's Law & Justice Committee, said he became interested in this case last year before the penalties against Energy were announced. He said he met personally with Gov. Jay Inslee, Bellon and Hedges, the top Ecology manager for the state’s Nuclear Waste Program, headquartered in Richland.
Kline said the agency managers led him to believe the state was taking this case seriously. So he was astounded when he saw the Agreed Order and accompanying fine last month, Kline said.
"At some point if you don't whack them they're going to have an attitude that continues exactly like what they've got. They [Energy Department officials] don't feel the need to respond to us because we haven't whacked them and this isn't it either," he said.
Bellon said the Agreed Order precludes the Energy Department from suing the state over the violations, which avoids the cost and time of litigation.
“The process we used here, we think, helps avoid that, saves the state money, time and resources to do that and put that time, money and resources into better inspections and getting it right in the future," she said.
Kline said a court battle may be exactly what’s needed to ensure a shift in the culture at Hanford.
“In the long run it would be productive because what they [the state] will have established is that they are not a paper tiger, that they’re serious and when they do an inspection and when they levy a fine, they’re going to follow it up, and they’re going to believe their scientists they’re going to back them up and they’re going to get after these guys," he said.
With the signing of the Agreed Order, both Energy and its contractor do not admit or deny the specific factual allegations made by the state. A portion of the Order states: “USDOE and CHPRC [CH2M Hill] do not agree with or admit to the violations, factual assertions or any legal conclusions listed [in the Order].”
Confidential state and federal sources with knowledge of the investigation told KING 5 they were “astounded”, “devastated”, and “disgusted” by the lack of action by the Dept. of Ecology. One employee with decades of experience said “managers should not be cutting deals” with the Energy Department because “they don’t have the detailed knowledge of the findings and appropriate penalties” that the inspectors have.
“We’re supposed to be a state that’s enlightened, that wants the earth, air and water to be clean. We have a much better record than many other states. We have a governor now who is elected on an environmental record that he’s had in Congress for years. We’re in a position to do so much better than this,” said Kline.
The biggest penalty the Department of Ecology ever lodged at Hanford was a $500,000 fine in 2007 for the release of radioactive tank waste into the soil. In this instance as well, the government contractor CH2M Hill was to blame. The waste endangered workers and halted cleanup of the leaky underground single-shell storage tanks.
Statewide, the Dept. of Ecology has issued penalties of $1 million or more on two occassions:
* 2002: $7.86 million each to Olympic and Shell Pipeline Cos. for a fatal explosion near Bellingham
* 1993: $1 million to China Ocean Shipping Co. for an oil spill off the Washington coast
The Hanford Nuclear Reservation encompasses 586 square miles near the Tri-Cities – an area about half the size of the state of Rhode Island. From 1943 to 1989 Hanford was the site of plutonium production to fuel the bomb dropped on Nagasaki, Japan in 1945 and then to build up the country’s nuclear arsenal through the Cold War. After the production came to a halt in 1989, a cleanup project was started, funded with $2 billion a year in taxpayer dollars. The cleanup is billions over budget and decades behind schedule.