Case 4:15-cv-05086-TOR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 MICHAEL C. ORMSBY United States Attorney Eastern District of Washington VANESSA WALDREF Assistant United States Attorney 920 West Riverside Ave., Suite 300 Spokane, WA 99201 (509) 353-2767 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 17 18 STATE OF WASHINGTON, 19 Plaintiff, 23 24 25 26 NO. 4:15-cv-5087-TOR (consolidated with 4:15-cv5086-TOR) v. 21 22 Filed 09/23/16 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice AUSTIN D. SAYLOR ELIZABETH B. DAWSON SHEILA BAYNES Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 514-2219 MARK A. NITCZYNSKI Environmental Defense Section 999 18th Street; South Terrace; Suite 370 Denver, CO 80202 (303) 844-1498 16 20 Document 136 ERNEST J. MONIZ, Secretary of the United States Department of Energy, the UNITED STATES DEPARTMENT OF ENERGY, and WASHINGTON RIVER PROTECTION SOLUTIONS LLC, Defendants. UNITED STATES’ RESPONSE TO PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION October 12, 2016 With Oral Argument: 9:00 a.m. Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 TABLE OF CONTENTS INTRODUCTION .................................................................................................. 1 BACKGROUND .................................................................................................... 2 I. STATUTORY AND REGULATORY BACKGROUND ............................. 2 II. FACTUAL BACKGROUND ....................................................................... 6 A. The Hanford Nuclear Reservation and the Tank Farms ....................... 6 B. The “Tri-Party Agreement”.............................................................. 10 C. Worker Health and Safety Measures and Tank Vapor Assessments in the Hanford Tank Farms ............................................................... 11 1. Elements of Occupational Health Programs at the Tank Farms ...................................................................................... 11 2. AOP-15 Reports ..................................................................... 12 3. Occupational Exposure Limits and Odor Thresholds .............. 15 4. Development of List of 59 “COPCs” ..................................... 18 5. Sampling and Monitoring of Tank Vapors .............................. 19 6. Current Dispersion Modeling Methods ................................... 22 7. Recent Exposure-Related Data................................................ 23 D. Tank Farm Safety Assessments and Implementation of New Safety Measures........................................................................................... 24 E. The Current Litigation ...................................................................... 26 STANDARD OF REVIEW .................................................................................. 27 I. PRELIMINARY INJUNCTIONS ............................................................... 27 ARGUMENT ....................................................................................................... 30 I. THE STATE’S MOTION FOR PRELIMINARY INJUNCTION SHOULD BE DENIED FOR LACK OF STANDING ............................... 30 Case 4:15-cv-05086-TOR II. Document 136 Filed 09/23/16 THE MOTIONS FOR PRELIMINARY INJUNCTION SHOULD BE DENIED BECAUSE PLAINTIFFS HAVE NOT DEMONSTRATED LIKELIHOOD OF SUCCESS ON THE MERITS...................................... 30 A. The RCRA “Imminent and Substantial Endangerment” Standard ........................................................................................... 30 B. The Alleged Health Effects do Not Support a Claim of Substantial Endangerment ................................................................................... 36 C. Sampling Data Do Not Show Over-Exposure to Vapor Chemicals ......................................................................................... 44 D. Plaintiffs’ Other Attempts to Establish That Conditions May Present an Imminent and Substantial Endangerment Are Unavailing ........................................................................................ 46 III. PLAINTIFFS WOULD NOT SUFFER IRREPARABLE HARM IN THE ABSENCE OF AN INJUNCTION..................................................... 50 IV. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST FAVOR DENIAL OF THE MOTIONS FOR PRELIMINARY INJUNCTION ............................................................................................ 51 A. Plaintiffs Incorrectly Argue Costs Versus Worker Protection ........... 52 B. The Public Has a Significant Interest in the Timely Cleanup Of the Tank Waste at Hanford .......................................................... 53 1. Congress Has Recognized the Public Interest in DOE’s Timely Cleanup of the Hanford Site ....................................... 54 2. This Court Has Emphasized the Significant Public Interest in Prompt Cleanup at Hanford, Including an Expedited Schedule For Retrieving Tank Farm Waste ............................. 55 C. Granting Plaintiffs’ Requested Relief Would Hamper DOE’s and WRPS’ Ability to Achieve the Safe, Timely Cleanup of Tank Waste at Hanford .............................................................................. 57 D. The Broader Public Interest in a Safe, Prompt Cleanup at Hanford Outweighs Plaintiffs’ Limited Interests on the Record Here .................................................................................................. 59 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 E. Denial of Plaintiffs’ Motions Would be Consistent with Congress’s Objectives in Enacting RCRA........................................................... 60 F. Injunctive Relief Is Not Necessary .................................................... 61 CONCLUSION .................................................................................................... 62 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 INTRODUCTION 2 The Department of Energy (“DOE”) is charged with cleaning up the 3 environmental legacy of the Nation’s nuclear weapons production complex, 4 including its chief plutonium-production facility—the Hanford Nuclear 5 Reservation in southeast Washington. Hanford presents a uniquely complicated 6 cleanup challenge, with contamination that is both varied and extensive. At the 7 heart of current cleanup operations are the 56 million gallons of mixed nuclear 8 and chemical waste stored in 177 underground tanks. For decades, DOE has 9 managed the tank waste and, more recently, has undertaken the daunting and 10 costly task of retrieving the tank waste with the goal of treating it to protect 11 human health and the environment, consistent with DOE’s authorities under the 12 Atomic Energy Act, an amended consent decree entered by Judge Peterson of 13 this Court, and applicable federal and state laws. With its vast experience 14 handling radioactive and hazardous materials at sites across the country, and 15 drawing on the expertise of its National Laboratories, DOE is uniquely qualified 16 to manage the Hanford cleanup operation on behalf of the federal government. 17 Plaintiffs’ claims present an unwarranted intrusion into DOE’s ongoing 18 cleanup operations at Hanford, including the world-class worker-safety and 19 industrial-hygiene measures DOE has put in place pursuant to its Atomic Energy 20 Act regulatory authority. As we establish below, Plaintiffs’ motions for 21 preliminary injunction should be denied because they fail to establish any of 22 four factors required to obtain such extraordinary relief. Plaintiffs are unlikely to 23 prevail on the merits of their claims because the facts here do not clearly show 24 that conditions at Hanford’s tank farms—specifically, alleged exposures to tank 25 vapors—may present an “imminent and substantial endangerment” under the 26 Resource and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). Likewise, U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 1 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Plaintiffs have failed to carry their burden of showing that they will suffer 2 irreparable harm without an injunction, particularly in light of the protective 3 measures DOE and its contractor, Washington River Protection Solutions 4 (“WRPS”), have implemented at the Site. As to the balance of the equities and 5 the public interest, both weigh decidedly in DOE’s favor because the injunction 6 Plaintiffs seek is not only unsupported by the science, but it would run contrary 7 to the public interest, as expressed by Congress and this Court, in protecting 8 health and the environment through the safe and timely cleanup of tank waste at 9 Hanford. For these reasons, the United States respectfully requests that the Court 10 deny Plaintiffs’ motions. BACKGROUND 11 12 I. STATUTORY AND REGULATORY BACKGROUND 13 Operations at the Hanford Site, including the tank farms, are governed by 14 a number of overlapping regulatory programs administered by DOE and several 15 other federal and State regulatory entities. DOE manages environmental cleanup 16 operations and regulates nuclear safety issues at Hanford pursuant chiefly to its 17 authority under the Atomic Energy Act of 1954 (“AEA”), 42 U.S.C. §§ 2011– 18 2297g-4. Among other things, the AEA authorizes DOE to regulate “the 19 possession and use of special nuclear material, source material, and byproduct 20 material as [DOE] may deem necessary or desirable to promote the common 21 defense and security or to protect health or to minimize danger to life or 22 property.” 42 U.S.C. § 2201(b). In addition, DOE is authorized to “to govern 23 any activity authorized pursuant to [the AEA], including standards and 24 restrictions governing the design, location, and operation of facilities used in the 25 conduct of such activity, in order to protect health and to minimize danger to life 26 or property.” 42 U.S.C. § 2201(i)(3). Except in certain narrowly defined U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 2 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 circumstances, DOE has exclusive regulatory authority over its activities 2 involving AEA materials. See 42 U.S.C. § 2140(a). See United States v. 3 Manning, 527 F.3d 828, 832 (9th Cir. 2008). 4 Pursuant to its authority under the AEA, DOE has promulgated 5 regulations establishing worker safety and health requirements that govern the 6 conduct of contractor activities at DOE sites, including cleanup operations. 10 7 C.F.R. pt. 851. Under those regulations, DOE has specified the Occupational 8 Exposure Limits (“OELs”) for chemicals and other substances in the workplace 9 that contractors must adhere to. 10 C.F.R. § 851.23(a). Specifically, contractors 10 must comply with the lower (more protective) limits established by either the 11 Occupational Safety and Health Administration (“OSHA”) or by the American 12 Conference of Governmental Industrial Hygienists (“ACGIH”). Id. At Hanford, 13 DOE also has worked with outside contractors, in coordination with teams of 14 toxicologists, chemists, and occupational health professionals, to establish 15 additional OELs for chemicals of potential concern—often referred to as 16 “COPCs”—that do not have limits established by OSHA or ACGIH. Decl. of 17 Richard Urie in Supp. of U.S. Resp. to Pls.’ Mots. for Prelim. Inj. (“Urie 18 Decl.”), ¶ 19. OELs are often established as eight-hour time-weighted averages, 19 but additional OELs address shorter-term exposures as well. Id. ¶¶ 20–22. 20 DOE’s workplace regulations also specify that contractors must establish 21 procedures to identify existing and potential workplace hazards, and to assess 22 the risk of associated worker injury and illness. 10 C.F.R. § 851.21(a). The 23 procedures must include methods to assess worker exposure to, inter alia, 24 chemical or safety workplace hazards through appropriate workplace 25 monitoring. Id. The contractor’s procedures also must document assessment for 26 such hazards using recognized exposure assessment and testing methodologies. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 3 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Id. Contractors also must establish and implement a hazard prevention and 2 abatement process to ensure that all identified and potential hazards are 3 prevented or abated in a timely manner. Id. Contractors are to select hazard 4 controls based on the following hierarchy: “(1) Elimination or substitution of the 5 hazards where feasible and appropriate; (2) Engineering controls where feasible 6 and appropriate; (3) Work practices and administrative controls that limit worker 7 exposures; and (4) Personal protective equipment.” 10 C.F.R. § 851.22(b); see 8 Urie Decl. ¶ 28. DOE’s regulations also include worker rights and 9 responsibilities, including the right to “stop work when the worker discovers 10 employee exposures to imminently dangerous conditions or other serious 11 hazards,” provided that the stop work authority is “exercised in a justifiable and 12 responsible manner in accordance with procedures established in the approved 13 worker safety and health program.” 10 C.F.R. § 851.20(b)(9). 14 Congress enacted RCRA in 1976 to provide a “comprehensive 15 environmental statute that governs the treatment, storage, and disposal of solid 16 and hazardous waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996). 17 EPA is the federal agency with chief hazardous waste permitting and 18 enforcement authority under RCRA, see 42 U.S.C. §§ 6925, 6928, but EPA may 19 authorize State hazardous waste programs to be carried out in lieu of the federal 20 program, see id. § 6926(b). Here, EPA has authorized Washington State’s 21 hazardous waste program under the Hazardous Waste Management Act, RCW 22 chapter 70.105, to carry out the authorized program in lieu of the federal 23 program. 51 Fed Reg. 3782 (Jan. 30, 1986). In carrying out the program, the 24 Washington Department of Ecology (“Ecology”) has an obligation under its 25 regulations to ensure that RCRA permits “contain terms and conditions” that it 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 4 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 determines are “necessary to protect human health and the environment.” Wash. 2 Admin. Code 173-303-815(2)(b)(ii) (2016). 3 At Hanford, DOE manages mixtures of AEA radioactive materials and 4 hazardous chemical waste that qualify as “mixed waste” under RCRA. See 42 5 U.S.C. § 6903(41). Mixed waste at Hanford is subject to joint DOE and State 6 oversight, to the extent of their respective authorities. See 66 Fed. Reg. 27,218, 7 27,221 (May 16, 2001) (mixed-waste rule). Specifically, DOE regulates the 8 radioactive component of “mixed waste” pursuant to the AEA, while the State 9 regulates the “hazardous waste” component of “mixed waste” pursuant to 10 RCRA. See id. The United States Environmental Protection Agency (“EPA”) 11 also has authority over the cleanup of the radioactive component of the mixed 12 waste pursuant to the Comprehensive Environmental, Response, Compensation, 13 and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601–9675, and oversees many 14 aspects of the Hanford cleanup pursuant to that authority. 15 The citizen suit provision of RCRA authorizes any person to “commence 16 a civil action on his own behalf . . . against any person, including the United 17 States . . . who has contributed or who is contributing to the past or present 18 handling, storage, treatment, transportation, or disposal of any solid or 19 hazardous waste which may present an imminent and substantial endangerment 20 to health or the environment[.]” 42 U.S.C. § 6972(a)(1)(B). 21 In addition to RCRA authorities, Ecology and the Washington State 22 Department of Health regulate air pollutant emissions at Hanford, including 23 certain air emissions from the underground storage tanks, through a “Hanford 24 Site Air Operating Permit” issued pursuant to the Clean Air Act, 42 U.S.C. § 25 7401 et seq., and the Washington Clean Air Act, RCW Ch. 70.94. The Air 26 Operating Permit was revised most recently on August 1, 2016. Decl. of Lori U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 5 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Huffman in Supp. of U.S. Resp. to Pls.’ Mots. for Prelim. Inj. (“Huffman 2 Decl.”) ¶ 29. 3 II. 4 5 FACTUAL BACKGROUND A. The Hanford Nuclear Reservation and the Tank Farms. Hanford was the site of the world’s first full scale plutonium-producing 6 reactor and was critical to the Nation’s defense, having produced the majority of 7 the plutonium needed for the United States’ nuclear weapons stockpile from the 8 time of the Manhattan Project through the 1980s. See Decl. of Thomas Fletcher 9 in Supp. of U.S. Resp. to Pls.’ Mots. for Prelim. Inj. (“Fletcher Decl.”), ¶¶ 8–13. 10 Pursuant to its exclusive AEA authority over the management of nuclear 11 materials, DOE conducts environmental remediation of sites involved in the 12 United States’ nuclear-weapons production complex, including at Hanford. 13 The complexity of the remediation project at Hanford is unprecedented. 14 Nearly five decades of plutonium production resulted in extensive 15 contamination and legacy wastes at the Site. See Fletcher Decl. ¶¶ 9–10, 14. 16 DOE has made tremendous progress in the cleanup of the Hanford Site over the 17 past 25 years. As of June, 2016, this progress includes completing the 18 remediation of more than 974 waste sites along the Columbia River; 19 demolishing 428 contaminated facilities; treating more than 15 billion gallons of 20 contaminated groundwater; transferring pumpable liquids and 2 million gallons 21 of solids to double-shell tanks; and moving all of the Site’s 2,300 tons of spent 22 nuclear fuel from areas around the Columbia River to dry storage. Cleanup 23 Progress at Hanford, available at 24 http://www.hanford.gov/news.cfm/DOE/Cleanup_Progress_at_Hanford_Factshe 25 et-06-2016.pdf. DOE is firmly committed to addressing the remaining 26 challenges and completing its environmental cleanup mission at Hanford. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 6 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 Safe management and disposal of the waste stored in the underground 2 tanks is one element of the Hanford cleanup that presents a unique challenge. 3 Each plutonium processing plant at Hanford generated a mix of radioactive 4 waste and chemical waste, which was piped to a series of underground storage 5 tanks. Fletcher Decl. ¶ 14. From 1944 through the late 1980s, Hanford generated 6 nearly 525 million gallons of tank waste. Id. ¶ 22. Liquid evaporation, discharge 7 to the ground, chemical treatment, and tank leakage reduced that volume by 8 nearly 90 percent, to approximately 56 million gallons of waste. Id. Today, those 9 56 million gallons of waste are stored in the 177 underground tanks at the 10 Hanford tank farms. Id. ¶ 23. Approximately 27 million gallons of waste are 11 contained in double-shell tanks, and the remaining 29 million gallons are 12 contained in single-shell tanks. Id. 13 The single-shell tanks are of two basic construction types. Fletcher Decl. ¶ 14 15. The first is a 20-foot diameter tank that contains a steel liner enclosed in a 15 shell of reinforced concrete, with walls that are 12 inches thick. Id. The second 16 type is a larger, 75-foot diameter tank, which also contains a steel liner enclosed 17 in a shell of reinforced concrete. Id. The walls range from 15 to 24 inches thick. 18 Id. All of these tanks are buried several feet beneath the surface to take 19 advantage of the natural shielding effect provided by the surrounding soil. Id. 20 Between 1968 and 1986, 28 double-shell carbon-steel lined tanks were 21 constructed. Fletcher Decl. ¶ 16. The double-shell tanks consist of a primary 22 carbon-steel tank inside of a secondary carbon-steel liner, which is surrounded 23 by a reinforced concrete shell that ranges from 15 to 18 inches in thickness. Id. 24 The primary tank has a diameter of 75 feet and measures approximately 47 feet 25 high. Id. An annular space of 2.5 feet exists between secondary liners and 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 7 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 primary tanks, allowing for examination of the tank wall and secondary liner 2 annular surfaces. Id. 3 The tank waste is a mixture of liquid, sludge, and saltcake with both 4 radioactive and chemically hazardous constituents. Fletcher Decl. ¶ 24. Liquids 5 in the tanks exist as supernate (liquid that sits on top of solid wastes) and 6 interstitial liquid (liquid filling the voids between solid wastes). Id. Sludge 7 consists primarily of solids (hydrous metal oxides) precipitated by the 8 neutralization of acid wastes, and generally exhibit the consistency of peanut 9 butter. Id. Saltcake, where present, generally exists between the supernate and 10 the sludge, and consists of the various salts formed by the evaporation of water 11 from the waste. It has the consistency of wet beach sand. Id. These waste types 12 do not always exist as distinct layers and may be intermingled. Id. The relative 13 proportions of supernate, interstitial liquid, saltcake, and sludge vary by tank. Id. 14 Generally speaking, the waste in the single-shell tanks is almost entirely saltcake 15 and sludge, as most of the drainable liquids have been pumped to the double- 16 shell tanks. Id. The waste in the double-shell tanks is predominantly supernate, 17 but also contains sludge and saltcake. Id. 18 Most of the tanks at Hanford contain a complex mixture of chemicals and 19 radionuclides due to: varying waste streams from the different plutonium 20 extraction processes used over time; intermixing of the wastes between tanks; 21 the addition of chemicals to the tanks to maintain chemistry control and reduce 22 corrosion; and the addition of chemicals from uranium extraction efforts. 23 Fletcher Decl. ¶ 25. The tank waste at Hanford is “mixed waste,” that is, it 24 contains a combination of radioactive waste and hazardous chemical waste. Id. ¶ 25 26. The chemical composition of the waste varies widely—more than 1,800 26 different chemical compounds are found in the tanks, including sodium U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 8 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 hydroxide, sodium salts of nitrite, nitrate, carbonate, aluminate, phosphate, and 2 hydrous oxides of aluminum, manganese, and iron. Id. The tanks may also 3 contain heavy metals, such as lead, chromium, and cadmium. Id. The tank waste 4 generates “vapor”—chemicals in the gaseous phase that originate from liquids— 5 as heat and radiation break down chemical compounds. Id. ¶ 27. Tank 6 headspaces, which are the areas between the waste surface and the dome of the 7 tank, contain several hundred different chemicals in vapor form. Id. ¶ 26, 27. 8 9 Hanford’s double-shell and single-shell tank ventilation systems are designed to prevent the build-up of excess flammable gases in the tanks’ 10 headspace that could pose serious safety consequences. Fletcher Decl. ¶ 28. The 11 double-shell tanks are fitted with active ventilation systems that run 12 continuously, except when the venting may be disrupted due to certain 13 mechanical or operational issues. Id. ¶ 29. The active ventilation systems have 14 high-efficiency particulate air (“HEPA”) filters that remove radioactive 15 particulates, and exhausters that ventilate the headspace gases through a stack 16 into the atmosphere. Id. Ventilation stack heights in the tank farms range from 17 20 to 50 feet. Id. Tanks on active ventilation are under a negative differential 18 pressure, which ensures that air flow direction generally is into the tank and that 19 any air flowing out of the tank is treated and filtered. Id. 20 The vapors in single-shell tanks are passively vented to the atmosphere 21 through HEPA breather filters, allowing the tanks to “breathe” with changes in 22 atmospheric and environmental conditions such as temperature and wind speed. 23 Fletcher Decl. ¶ 30. When workers are retrieving waste from a single-shell tank, 24 the tank is placed on active ventilation similar to the double-shell tanks. Id. In 25 the future, the entire single-shell tank farm will be on active ventilation. Id. 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 9 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Operations at Hanford, including in the tank farms, are closely regulated. 2 In addition to DOE’s own regulatory role over nuclear safety and other matters, 3 numerous federal, state and local authorities, including Ecology, EPA, and the 4 Washington Department of Health (“Health”), have permitting and other 5 regulatory oversight roles at the Site. Huffman Decl. ¶ 7. DOE is currently 6 operating under an array of complex environmental permits, a number of which 7 are applicable to the tank farms. DOE staff meet regularly with Ecology and 8 Health to discuss various aspects of the applicable requirements. Id. ¶ 2. In 9 addition, the regulatory agencies conducted over 70 inspections at Hanford in 10 2015, and over 60 to date in 2016, including at least 32 related to air compliance 11 at WRPS’ tank farms facilities. Id. ¶ 31. Nonetheless the State’s Complaint was 12 not filed on behalf of Ecology even though Ecology is the state agency 13 designated to implement and enforce RCRA. 14 B. The “Tri-Party Agreement.” 15 To provide a framework for how certain overlapping regulatory 16 authorities would operate with respect to the Hanford Site cleanup, in 1989 17 DOE, EPA, and Ecology executed a Federal Facility Agreement and Consent 18 Order, often referred to as the “Tri-Party Agreement.” 19 http://www.hanford.gov/page.cfm/TriParty/TheAgreement; Huffman Decl. ¶ 10. 20 The Tri-Party Agreement contains milestones for closing the tank farms, 21 including moving waste from single-shell tanks to double-shell tanks. In 2008, 22 the State of Washington filed suit against DOE, alleging that DOE was in 23 violation of the Tri-Party Agreement because the State believed DOE would 24 miss one or more milestones in the agreement, including tank waste retrieval 25 milestones. The parties entered into a consent decree in 2010 that included, 26 among other commitments, retrieving waste from 19 single-shell tanks. Consent U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 10 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Decree, State of Washington v. Moniz, Civ. No. 08-5085-RMP, ECF No. 59 2 (Oct. 25, 2010). The court amended the decree in 2016 after DOE and the State 3 of Washington filed competing motions to modify. Id. ECF Nos. 222, 232. 4 When modifying the decree, the court emphasized the need for the Hanford Site 5 cleanup to proceed expeditiously, emphasizing that delays in the waste clean-up 6 entail greater risk to the environment. Third Order Regarding Motions to 7 Modify Consent Decrees, ECF No. 221 at 5. The court focused particular 8 attention on single-shell tank retrieval, stating that it “must be completed as 9 expeditiously as possible both for the interests of the public and the 10 11 12 13 environment.” Id. at 74. C. Worker Health and Safety Measures and Tank Vapor Assessments in the Hanford Tank Farms. 1. Elements of Occupational Health Programs at the Tank Farms. The occupational health programs at the Hanford tank farms are 14 comprised of three distinct but interrelated elements, which can be visualized as 15 a triangle: industrial hygiene; computer modeling; and occupational medicine. 16 Urie Decl. ¶ 25. All three of these technical disciplines are data-driven. Id. This 17 multidisciplinary approach is well-established and used at thousands of 18 industrial sites nation-wide. Id. 19 Industrial hygiene is devoted to anticipating, evaluating, sampling, 20 monitoring, and controlling a spectrum of workplace hazards. Urie Decl. ¶ 29. 21 The industrial hygiene program at the Hanford tank farms includes chemical risk 22 assessment, exposure assessments, and vapor “control sets,” which are 23 combinations of hazard elimination practices, engineering controls, 24 administrative controls, and use of personal protective equipment such as self- 25 contained breathing apparatus (“SCBA”). Id. Characterizing and measuring 26 vapors at tank exhaust points, in work areas, and in workers’ breathing zones is U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 11 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 a significant focus of the tank farm industrial hygiene program, and is 2 accomplished in part through on-site sampling and monitoring. Id. ¶¶ 30, 35–40. 3 The field of occupational medicine involves surveillance of worker health. 4 Id. ¶ 42. At the tank farms, this surveillance includes: pre-employment and 5 annual physical examinations, physiological tests (e.g., electrocardiogram, lung 6 function) and biological monitoring of each tank farm worker; precautionary 7 medical examinations following any suspected worksite incident involving 8 potential exposure or overexposure to chemicals; compilation of annual health 9 trend reports; review of epidemiological or other health studies; and ongoing 10 analysis of past, present, and future health indicators for the small subset of 11 workers who have reported symptoms when on the job. Id. ¶¶ 42, 80. 12 Computer modeling based on sampling and meteorological data is used to 13 assess atmospheric dispersion of airborne emissions from sources such as the 14 tank ventilation stacks and breather filters. Urie Decl. ¶ 71. A practical example 15 of how these three “triangle” disciplines are integrated at the tank farms involves 16 the use of sampling data from tank exhaust stacks as inputs for computer models 17 to assess how chemical concentrations are reduced through dispersion. Id ¶ 43. 18 The results of this modeling provide guidance for imposing site access 19 restrictions and in placing air monitors. Id. Data from the air monitors is then 20 used to evaluate the site access restrictions, which can be adjusted accordingly. 21 Id. Medical surveillance data, including from worker blood and urine testing, 22 provides additional information for evaluating the adequacy of the site access 23 restrictions or other control sets. Id. This iterative process sometimes warrants 24 relaxation of initial, overly-conservative control sets based on data that reduce 25 uncertainty and provide a technical basis for more well-tailored controls. Id. 26 2. AOP-15 Reports. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 12 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 In their briefs, Plaintiffs focus heavily—at times exclusively—on worker 2 reports of alleged exposures to vapors. See, e.g., State Mot., ECF No. 49, at 20– 3 21; Cit. Mot., ECF No. 79, at 6–10. The vast majority of those worker reports 4 are based on the “AOP-15” process in place for the tank farms. The AOP-15 5 process is implemented either when: (1) workers have reported chemical odors 6 that have caused symptoms of exposure such as headaches or difficulty 7 breathing; or (2) a stronger-than-normal odor is detected by multiple personnel 8 outside areas where potential or actual vapor concerns are expected. Urie Decl. 9 ¶ 44. The workers themselves decide whether to report an AOP-15 event. Id. 10 In response to an AOP-15 event, the affected area is evacuated. Urie Decl. 11 ¶ 44. Other workers in adjacent areas are notified, and access to the area is 12 restricted. Id. For some AOP-15 events, the likely source of the odors has been 13 unrelated to tank vapors. As an example, one AOP-15 report of odors was 14 caused by a rotting orange peel left in a garbage can. Id. ¶ 45. 15 Employees who exhibit symptoms are sent to the onsite medical provider 16 for an evaluation, and medical evaluation also is offered to employees who do 17 not report symptoms. Id. ¶ 44. These evaluations entail an immediate, rigorous, 18 on-site medical analysis. Decl. of Dr. Karen Phillips in Supp. of U.S. Resp. to 19 Pls.’ Mots. for Prelim. Inj. (“Phillips Decl.”), ¶¶ 8–29. The procedure for this 20 analysis has been in place for several years and has been evaluated by numerous 21 outside agencies and subject matter experts for content. Id. ¶ 8. The initial 22 evaluation includes the history of the event, medical history of the patient, and 23 physical exam, including lungs, neurological status, and vital signs of oxygen 24 saturation, temperature, pulse and blood pressure. Id. ¶¶ 15, 18, 21. Other exam 25 components include, inter alia: blood tests, including a comprehensive 26 chemistry panel (including liver function, kidney function, and electrolytes); U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 13 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 blood cell counts; complete urinalysis; blood and urine mercury levels; 2 pulmonary function testing and any other testing as ordered by the medical 3 provider. Id. ¶ 24. After the evaluation, the medical provider determines the 4 discharge disposition of the worker. Id. ¶ 25. Workers receive a follow up 5 appointment within five business days to review the results of their blood tests 6 one-on-one with the medical provider. Id. ¶ 28. 1 7 8 1 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DOE is a Washington State self-insured employer under the Revised Code of Washington 51.04.130. Decl. of Julianna Yamauchi in Supp. of U.S. Resp. to Pls.’ Mots. for Prelim. Inj. (“Yamauchi Decl.”), ¶ 2. As such, while DOE assumes financial responsibility for providing workers’ compensation benefits to injured workers, the Washington State Department of Labor and Industries (“L&I”) oversees the provision of benefits and makes all determinations regarding approving or denying benefits. Id. ¶¶ 2, 6, 11. A Memorandum of Understanding between DOE and L&I identifies which contractors and subcontractors at the Hanford Site are covered under DOE’s self-insurance. Id. ¶ 3. Citizen Plaintiffs’ expert represents that DOE opposed a specific worker’s claim, Decl. of Dr. Tim K. Takaro in Supp. of Citizen Pls.’ Mot. for Prelim. Inj. (ECF No. 78 ¶ 26); however, that worker’s employer is not now, and has never been, an identified contractor or subcontractor covered under DOE’s selfinsurance. Yamauchi Decl. ¶ 4. Therefore, this worker’s claim was not administered by Penser, DOE’s workers’ compensation claim administrator. Id. However, it is premature to draw any conclusions regarding to extent to which workers’ compensation claims are relevant to Plaintiffs’ RCRA claims, because the record has not been developed on that issue. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 14 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 AOP-15 events, which may occur within or outside of the tank farm fence 2 lines, have been infrequent. Between January 1, 2014 and July 31, 2016, there 3 were 54 AOP-15 events reported. Fletcher Decl. ¶ 60. Twenty-five were inside 4 the tank farm fence lines and twenty-nine were outside the fence lines, and ten 5 involved waste-disturbing activities. Id. The events involved 134 workers, 96 of 6 whom reported symptoms and 38 of whom did not. Id. During that same time 7 period, there were approximately 195,000 tank farm entries—meaning the 8 number of instances in which a worker from DOE, WRPS or a WRPS 9 subcontractor entered within the perimeter fence lines of the tank farms. Id. 10 Accordingly, the number of workers involved in AOP-15 events represents a 11 tiny fraction of the workers who entered the tank farms. And that fraction would 12 be even tinier if the workers involved in the AOP-15 events were compared to 13 the combined number of workers inside and outside the fence lines near the tank 14 farms, but it is difficult to quantify that total. Id. 15 3. Occupational Exposure Limits and Odor Thresholds. 16 As mentioned above, Occupational Exposure Limits, or OELs, are 17 generally derived from two sources. Urie Decl. ¶ 16. OSHA establishes what it 18 labels “permissible exposure limits” and the ACGIH establishes limits calls 19 “threshold limit values.” Id. While the nomenclature is different, the limits 20 function similarly. DOE’s worker safety and health regulations specify that 21 contractors at DOE sites must comply with these limits, including the lower 22 (more protective) limit when both OSHA and ACGIH have established limits 23 for a given substance. 10 C.F.R. § 851.23; Urie Decl. ¶ 18. 24 As noted above, Hanford tank waste contains some chemicals for which 25 neither of these authorities has established an OEL. Urie Decl. ¶ 19. Beginning 26 in 2004, DOE engaged a prior tank farms contractor, CH2MHILL Hanford U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 15 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Group, Inc., and an independent team of toxicologists, chemists, and 2 occupational health professionals (including the Pacific Northwest National 3 Laboratory (“PNNL”)) to establish OELs for those tank COPCs lacking OSHA 4 or ACGIH limits. Urie Decl. ¶ 19; id., Ex. F. To determine exposure limits 5 expected to be safe, the contractor and the expert team assessed the chemicals 6 and reviewed available epidemiology and toxicology information. Urie Decl. ¶ 7 12. Where toxicological information was limited or missing, an OEL was 8 developed based on similar chemicals for which sufficient information was 9 available. Id. ¶ 19. 10 In addition, tank farm chemicals also have an established “Action Level,” 11 which for vapors at the Hanford tank farms are set at 50% of the OEL. Urie 12 Decl. ¶ 21. An Action Level is the airborne concentration of a substance above 13 which exposures are controlled. Id. If an Action Level is detected through 14 monitoring or sampling, then certain administrative actions are taken, such as 15 removal of workers from the area or an industrial hygiene-based reassessment of 16 conditions and potential sources of chemical vapors. Id. WRPS maintains an 17 additional, even more conservative voluntary Administrative Control Level, 18 typically at 10% of the OEL for those chemicals known to exist in the tank 19 waste. Id. If a chemical is found through monitoring or sampling to be present in 20 worker breathing zones at a concentration greater than 10% of the OEL, then an 21 exposure assessment is performed to ensure that the appropriate controls are 22 instituted to maintain worker exposures below the OEL. Id. 23 OELs are not designed to prevent the smell of odors or all symptoms that 24 may appear in all workers. Urie Decl. ¶ 23; Decl. of Tony Watson in Supp. of 25 U.S. Resp. to Mots. for Prelim. Inj. (“Watson Decl.”), ¶ 10. According to the 26 ACGIH, their OELs represent conditions under which nearly all workers may be U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 16 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 repeatedly exposed, day-after-day, over a working lifetime of 40-hour work 2 weeks, without adverse health effects. Urie Decl. ¶ 16. Nonetheless, there are 3 workers who, despite compliant controls that are protective of the general 4 workforce, will experience discomfort, irritation, or aggravation of the 5 respiratory system at low chemical exposure levels on or off the job due to 6 various genetic, physiological, and/or lifestyle differences. Id. ¶¶ 17, 23–24. For 7 example, the ACGIH notes that up to 8% of a work population may experience 8 eye, nose and throat irritation at exposure levels of one-third of ACGIH’s 9 threshold limit values for formaldehyde. Id. ¶ 17. Formaldehyde is a minor 10 constituent of tank waste, and is a common product found in insulation, 11 laminated flooring, and other household products that may generate such 12 symptoms in a portion of the population that uses those products. Id. 13 Relatedly, ammonia is one of the contaminants most commonly found in 14 the tank headspaces. Urie Decl. ¶¶ 9, 37. For ammonia, the ACGIH has 15 established an eight-hour time-weighted average threshold limit value of 25 16 parts per million. Watson Decl. ¶ 10. (The eight-hour time-weighted average is 17 the concentration of a chemical not to be exceeded when averaged over an 8- 18 hour workday. Urie Decl. ¶ 20.) The permissible exposure limit set by OSHA, as 19 an eight-hour time-weighted average, is 50 parts per million. Watson Decl. ¶ 10. 20 ACGIH also has established a 15-minute, time-weighted average, short-term 21 exposure limit of 35 parts per million. (This short-term limit, often referred to as 22 a “STEL,” is a 15-minute time-weighted average that should not be exceeded at 23 any time during the workday. Urie Decl. ¶ 20.) For the tank farms, WRPS’s 24 Administrative Control Level for ammonia is 2.5 parts per million, which is 25 10% of the lowest of these OELs. Watson Decl. ¶ 10. Nonetheless, some 26 workers will smell ammonia odors at or well below this protective level. Id. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 17 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 While odor detection thresholds are highly variable among individuals, the odor 2 threshold for ammonia (i.e., the lowest concentration at which an odor is 3 detected) is approximately two to five parts per million for most people, and 4 some individuals can smell ammonia at concentrations as low as 0.04 parts per 5 million. Id.; see also Decl. of Dr. Tee Guidotti in Supp. of U.S. Resp. to Pls.’ 6 Mots. for Prelim. Inj. (“Guidotti Decl.”), ¶ 30. 2 In some pre-disposed individuals, odors alone may result in symptoms of 7 8 irritation, including reactive airways in individuals with pre-existing asthma. 9 Urie Decl. ¶ 23. As reported in the American Journal of Medicine, “[a] survey of 10 60 asthmatic patients revealed a history of respiratory symptoms in 57 on 11 exposure to one or more common odors. Odors are an important cause of 12 worsening of asthma.” See id. ¶ 83. Asthma, which affects 14 to 15 million 13 people in the United States, is defined as a “chronic lung condition with 14 inflammation (swelling) of the airways, increased sensitivity of the airways to a 15 variety of things that make asthma worse, and obstruction of airflow.” Id. Unless 16 severe, however, asthma does not preclude employment at the tank farms. Id. In 17 addition, the presence of strong odors provokes physiological responses 18 manifested as nausea, anxiety, stress (which may include transient elevation in 19 blood pressure), and aversion. Guidotti Decl. ¶ 34. These physiological 20 responses are sometimes mistaken for toxic effects but, instead, they result from 21 the body’s innate protective mechanisms. Id. 4. Development of List of 59 “COPCs.” 22 23 24 2 25 26 The concentrations below 1 part per million are even below the detection limit for monitoring equipment used to detect ammonia. Watson Decl. ¶ 10. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 18 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 Due to the variety and large number of chemical compounds among the 2 headspaces of certain tanks, a methodology was developed to evaluate and 3 identify the chemicals that appeared to present possible health risks and/or could 4 reasonably be expected to be present in the worker breathing zones. Urie Decl. 5 ¶¶ 11–12. The methodology involved consideration of three general topics: (1) 6 tank farm chemistry; (2) chemical concentration variability and stability; and (3) 7 toxicological evaluation. Id. ¶ 12. The intent was to identify those chemical 8 which, based on available data, potentially could exceed their Administrative 9 Control Limit (10% of the OEL), at the source. Id. The resulting list, currently 10 comprised of 59 chemicals, are known as COPCs. Id. An independent 11 toxicological panel, consisting of nationally recognized toxicology and 12 industrial hygiene experts, reviewed and validated the methodology used to 13 develop that list. Id. The COPCs were identified based on potential adverse 14 health risk according to their carcinogenicity, concentrations compared to their 15 OELs, prevalence in tanks, and toxicity. Id. The COPCs are the primary suite of 16 chemical compounds that are sampled and monitored for before and after major 17 work activities, such as waste transfers or exhauster startups. Id. ¶ 13. The 18 COPCs are a subset of the approximately 800 chemicals detectable (if present) 19 through analysis of air samples, which serves as a means of continually 20 evaluating the COPC list. Id.; see also Guidotti Decl. ¶ 43 (it is not necessary to 21 measure every constituent to know whether it was present and its relative 22 magnitude). 23 24 5. Sampling and Monitoring of Tank Vapors. WRPS uses a multi-tiered industrial hygiene exposure monitoring and 25 screening process. Urie Decl. ¶ 34. That process involves five components: (1) 26 source sampling and monitoring; (2) area sampling and monitoring; (3) use of U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 19 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 hand-held direct-reading instruments to alert workers of any unexpected spikes 2 in gases or vapors; (4) personal sampling; and (5) collection of suspect spikes in 3 gas or vapor emissions by “grab sampling” for relatively quick chemical 4 screening and analysis. 3 Id. Source monitoring and sampling is performed at a “source” such as a 5 6 stack, vent, or tank headspace. Such sampling and monitoring data allows for 7 the identification of a broad range of chemical vapor constituents present at the 8 source. Urie Decl. ¶ 35. Air and water comprise more than 99% of the tank 9 headspace content, and the vast majority of remaining compounds, if present in 10 a given tank, are in concentrations less than one part per million. Id. ¶ 9. 11 Nonetheless, the concentrations of chemicals in the underground tank 12 headspaces are much greater than what workers breathe outside because of the 13 significant dilution that occurs when vapors reach the outside air. Id. ¶¶ 10, 31. 14 By way of analogy, the headspace of a car’s gasoline tank contains a number of 15 chemicals that would be dangerous, or even lethal, to a person whose head was 16 inside that gas tank. Id. ¶ 32. However, a person standing immediately adjacent 17 to the opening of the gas tank at a filling station is not at risk of over-exposure 18 because the concentration of the chemicals is sufficiently diluted at even that 19 short distance. Id. ¶ 32. 20 3 21 22 23 24 25 26 NIOSH previously confirmed that the sampling methods used in the tank farms have been appropriate. In a September, 2013, letter regarding the previous five years of air monitoring data, NIOSH reported that the area air monitoring and personal exposure air monitoring for tank farm chemicals was accomplished according to methods proscribed by OSHA, NIOSH, or other reputable sources. See Urie Decl. ¶ 39 & Exhibit J to Urie Decl. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 20 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 Hand-held “direct-reading” instruments are used to collect ambient air 2 measurements at specific locations or to perform continuous monitoring during a 3 tank farm entry. Urie Decl. ¶ 37. Direct-reading instruments provide real-time 4 monitoring, and are used in the tank farms primarily as a means to warn of 5 unanticipated or changed conditions. Urie Decl. ¶ 37. The most common use of 6 direct reading instruments in the tank farms is to monitor for ammonia and 7 volatile organic compounds (“VOCs”) because those are the most prevalent 8 COPCs. Id. Over 100 direct reading instruments are used at the Hanford tank 9 farms. Id. WRPS has deployed a mercury vapor analyzer capable of measuring 10 11 mercury in ambient air. Id. Personal sampling consists of collecting and analyzing air samples from 12 the breathing zones of individual workers. Urie Decl. ¶ 38. One or more 13 members of a work team, referred to as a “similar exposure group,” wear the 14 personal sampling gear, and the results from that sampler may be representative 15 of any exposures for other members of a work team if sufficiently nearby. Id. ¶¶ 16 35, 38. Personal sampling is critical because it captures concentrations in 17 workers’ breathing zones. 18 “Grab sampling” enables on-the-spot collection of air at a given location. 19 Generally speaking, a “grab sample” represents the composition of the medium 20 sampled (e.g., air) only at that time and place. Urie Decl. ¶ 40. Grab sampling 21 enhances the ability to respond to indications (from direct reading instruments or 22 worker reports) of potential spikes in vapor chemicals. Id. The results of this 23 24 25 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 21 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 sampling serve primarily to provide confirmation of safe re-entry to a work area, 2 but also provide some indicator of air quality for later consideration. Id.4 6. Current Dispersion Modeling Methods. 3 Computer modeling based on monitoring and meteorological data is a 4 5 means of estimating dispersion of airborne emissions from a source, which in 6 turn aid in estimating potential levels of exposure. See Urie Decl. ¶¶ 41, 72. 7 Such modeling is used by EPA for permitting of emission sources and by OSHA 8 for estimating worker exposures in concert with air monitoring. Id. ¶ 72. Based 9 on analysis and recommendations provided by PNNL, WRPS recently starting 10 using two new air dispersion models. Id. WRPS commissioned PNNL to 11 provide an assessment of various dispersion models. A final report has not yet 12 been issued, but PNNL has tentatively identified the “AIHA Eddy Diffusion 13 Model” as the most appropriate of several models under consideration for 14 shorter-distance dispersion modeling. Id. ¶ 74. PNNL also tentatively identified 15 the “AERMOD” plume model as the best suited among several model assessed 16 for certain longer-distance dispersion modeling. Id. WRPS has used the Eddy 17 Diffusion Model to establish the “vapor control zones” – i.e., areas in which 18 WRPS determined that SCBA was mandatory because chemical concentrations 19 4 20 21 22 23 24 25 26 While WRPS personnel already perform grab sampling in the tank farms, WRPS is currently exploring the deployment of personal grab sampling to tank farm workers as one element of the Implementation Plan developed to address the recommendations in the October, 2014 Hanford Tank Vapor Assessment Report (“TVAT Report”), which we discuss further below. Urie Decl. ¶ 40. See infra at 24–26. The TVAT Report recommended the use of grab sampling for characterizing hypothesized “bolus” emissions. Urie Decl. ¶ 40. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 22 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 could reach 50% of the OEL – around single-shell tank passive breather filters. 2 Id. ¶¶ 75–76. The radii of those vapor control zones range from five to 48 feet, 3 depending largely on the different headspace compositions of the single shell 4 tanks to which the breather filter risers are connected. Id. ¶ 76. 5 7. Recent Exposure-Related Data. 5 Personal sampling results over the past several years have not shown any 6 7 exceedances of the OELs for tank farm vapor chemical constituents in worker 8 breathing zones. Urie Decl. ¶¶ 56–57. Indeed, except in very rare instances, 9 these personal sampling results near worker breathing zones have been less than 10 10% of the OELs. Id. ¶ 56. 11 i. Time-Weighted Average (8 hour) (10/01/2008 to 12 07/28/2016): 135,984 total data results; 10,515 data results in the detectable 13 range (8%); 21 data results above 10% OEL (0.02%); highest two results were 14 76% and 41% of the OEL; 15 ii. Short-Term Exposure (“STEL”), Excursion, and Ceiling 16 Limits (10/01/2008 to 07/28/2016): 27,783 total data results; 1,786 data results 17 in the detectable range (6%); 51 data results above 10% of the Excursion/Ceiling 18 Limits (0.2%); highest two results were 67% of the Excursion Limit and 39% of 19 the Ceiling Limit. 6 20 5 21 22 23 24 assessing and conducting pilot studies of additional models under Phase I of the Implementation Plan. Urie Decl. ¶ 78. These include “Real-Time Response Models” that use real-time meteorological data at the tank farms. Id. 6 25 26 In addition, WRPS with the assistance of PNNL is in the process of The “ceiling” limit is the concentration that should not be exceeded during any period of time. Urie Decl. ¶ 20. Similarly, “excursions” above a (Footnote continued on next page…) U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 23 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 Focusing on more recent data, approximately 47,000 personal samples 2 collected over the past two years (January 7, 2015 to August 16, 2016) also 3 show that there have been no OEL exceedances for any tank farm vapor 4 constituents. Urie Decl. ¶ 57. Often, the results are orders of magnitude below 5 the OEL. Id. 6 7 8 D. Tank Farm Safety Assessments and Implementation of New Safety Measures. Over the past eight years, there have been no fewer than four third-party, 9 expert assessments of industrial hygiene or occupational health at the Hanford 10 tank farms: (1) Hanford Concerns Council “Review of the Industrial Hygiene 11 Chemical Vapor Technical Basis Review” (June 2008); (2) Hanford Concerns 12 Council “Independent Review Panel Report On Chemical Vapors Industrial 13 Hygiene Strategy” (September 2010); (3) NIOSH Letter to WRPS dated 14 September 20, 2013; and (4) Hanford Tank Vapor Assessment Report (October 15 2014). Urie Decl. ¶ 46. Three additional vapors-related reviews are in progress: 16 (1) DOE Office of Inspector General “special review” of DOE’s actions to 17 address worker concerns regarding vapor exposures at Hanford; (2) NIOSH 18 “focused review” of the site medical program, exposure assessment, and related 19 topics; and (3) DOE’s Office of Enterprise Assessments review of progress in 20 addressing tank farm vapor issues identified in the TVAT Report. Id. ¶ 49. 21 22 23 24 25 26 substance’s eight-hour time-weighted average are to be within the following limits: the time-weighted average must not be exceeded; the concentration may exceed three times the substance’s time-weighted average for no more than 30 minutes during a work day; and a measurement should under no circumstances exceed five times the time-weighted average. Id. ¶ 22. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 24 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 The analyses completed to date have in common that they made 2 recommendations primarily directed at research and development tasks to 3 expand on requirements and voluntary measures already in place. Urie Decl. ¶ 4 46. None of the reports has recommended mandatory use of SCBA in all tank 5 farms for all jobs, and in fact some have noted that such use poses hazards. Id. 6 ¶¶ 48, 69. None of the expert teams reviewing conditions at the tank farms 7 expressed a concern for their safety while visiting the tank farms or requested to 8 use SCBA during such visits, including when odors were smelled during a 9 NIOSH site tour in late July, 2016. Id. ¶ 50. 10 Consistent with its work with prior contractors, DOE has continued to 11 work with WRPS to assess and improve worker conditions at the tank farms. 12 Recently, in February, 2015, DOE’s Office of River Protection (“ORP”) 13 directed WRPS to begin Phase 1 of a two-phase Implementation Plan to address 14 the recommendations in the October 30, 2014 TVAT Report. Fletcher Decl. ¶ 15 49. While there are serious questions about the TVAT Report’s hypothesized 16 “bolus” exposures on which many of the report’s recommendations were based, 17 DOE nonetheless is pressing forward with implementing the recommendations. 18 Id. DOE currently is overseeing WRPS’s efforts to carry out Phase 1 of the 19 Implementation Plan, which generally focuses on: (1) data collection (e.g., 20 expanded sampling and characterization of tank headspace gases) to help 21 determine the validity of the bolus exposure theory or to identify other potential 22 exposure mechanisms; (2) evaluation of new field and personal monitoring and 23 protective equipment; and (3) increased hiring and training of industrial hygiene 24 staff. Id. Potential Phase 2 actions (planned for fiscal years 2017–19 and 25 beyond) generally consist of steps to institutionalize an enhanced industrial 26 hygiene program. Id. The particular elements of Phase 2 actions will be highly U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 25 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 dependent upon the information gathered and analyzed in Phase 1. Id. Already, 2 the Phase 1 investment totals approximately $50 million for specific 3 Implementation Plan activities. Id. ¶ 50. DOE has invested an additional 4 approximately $45 million for fiscal years 2015–16 to equip tank farm workers 5 with SCBA for particular activities. Id. 6 As part of its oversight and evaluation, DOE chartered a Vapors 7 Integrated Project Team and established Vapor Management Expert Panel 8 (“VMEP”), an independent panel of experts, to help ensure that the actions 9 WRPS takes to implement the TVAT Report’s recommendations are effective in 10 protecting workers from potential vapor exposures. Fletcher Decl. ¶ 52. In 11 addition, DOE has been monitoring, reviewing and assessing WRPS’s ongoing 12 Phase 1 activities in numerous ways. Id. ¶ 53–55. DOE has also initiated 13 discussions with NIOSH regarding a study of reported symptoms and 14 phenomena observed among tank farm workers. Id. ¶ 56. 15 In addition to the actions being taken under the Implementation Plan to 16 address the TVAT Report’s recommendations, DOE continues to make a 17 significant effort to improve tank farm operations, including improvements to 18 minimize potential hazards. Id. ¶ 59; see also Urie Decl. ¶ 48. The physical 19 components of those activities include installing updated ventilation systems 20 with high flow rates and taller stacks, and implementing a wireless infrastructure 21 to minimize worker entries into the tank farms. Id. 22 E. The Current Litigation. 23 On September 2, 2015, Hanford Challenge and the United Association of 24 Plumbers and Steamfitters Local Union 598 (collectively, “Hanford 25 Challenge/Citizen Plaintiffs”) filed a RCRA citizen suit against DOE and 26 WRPS, alleging that tank vapors at Hanford pose an “imminent and substantial U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 26 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 endangerment to health or the environment.” ECF No. 1, E.D. Wash. No. 4:15- 2 cv-05086. Later that day, the State filed a RCRA citizen suit against DOE and 3 WRPS, also alleging an “imminent and substantial endangerment” and setting 4 forth legal and factual allegations similar to those made in the Hanford 5 Challenge Complaint. ECF No. 1, E.D. Wash. No. 4:15-cv-05087. Neither 6 Hanford Challenge nor the State alleges a claim for relief for violation of a State 7 law or regulation, or of a State-issued permit. The State’s Complaint was not 8 filed on behalf of Ecology even though Ecology is the State agency designated 9 to implement and enforce RCRA. See, e.g., Tri-Party Agreement, Art. I, ¶ 2. On July 21, 2016, both the State and Hanford Challenge filed motions for 10 11 preliminary injunction, seeking specific preliminary relief related to alleged 12 worker exposures and health effects from tank vapors. ECF Nos. 49, 74. In the 13 interest of obtaining a reasonable briefing schedule on those motions, DOE and 14 WRPS agreed to maintain or implement certain interim measures until the Court 15 rules on the motions or until November 24, 2016, whichever is earlier. ECF No. 16 106 at 3–5. DOE and WRPS also agreed that various vapor monitoring and 17 detection equipment would be deployed for ongoing pilot-scale testing by 18 August 15, 2016. Id. at 6. Hearing on the motions is scheduled for October 12, 19 2016. Id. On August 23, 2016, the United States filed a motion for Judgment on 20 the Pleadings on behalf of DOE, seeking dismissal of the State’s Complaint for 21 lack of standing. ECF No. 110. WRPS subsequently sought to join that motion 22 in part, also seeking to dismiss the State’s Complaint. ECF No. 111. STANDARD OF REVIEW 23 24 25 26 I. PRELIMINARY INJUNCTIONS Issuance of a preliminary injunction, before the merits of a case have been decided, is an “extraordinary and drastic remedy,” Munaf v. Geren, 553 U.S. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 27 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 674, 689-90 (2008), that “may only be awarded upon a clear showing that the 2 plaintiff is entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008) 3 (citation omitted). To obtain a preliminary injunction, the moving party must 4 show that: (1) it is likely to succeed on the merits; (2) it is likely to suffer 5 irreparable harm in the absence of preliminary relief; (3) the balance of equities 6 tips in its favor; and (4) an injunction is in the public interest. Winter, 555 U.S. 7 at 20 (rejecting the Ninth Circuit’s earlier rule that the mere “possibility” of 8 irreparable harm, as opposed to its likelihood, was sufficient in some 9 circumstances to justify a preliminary injunction); Conservation Cong. v. U.S. 10 Forest Serv., 720 F.3d 1048, 1054 (9th Cir. 2013) (citing Winter, 555 U.S. at 11 20). Plaintiffs bear the burden of satisfying each of these four factors, and a 12 failure to make the required showing on any one factor requires denial of the 13 motion. DISH Network Corp. v. FCC, 653 F.3d 771, 776-77 (9th Cir. 2011), 14 cert. denied, 132 S.Ct. 1162 (2012). 7 In general, satisfying the first prong of Winter requires more than a 15 16 showing that “success is more likely than not;” it requires a plaintiff to 17 demonstrate a “substantial case for relief on the merits.” Leiva-Perez, 640 F.3d 18 at 967–68. A plaintiff’s burden is even more demanding where, as here, the 19 7 20 21 22 23 24 25 26 Alternatively, as a general matter, “‘serious questions going to the merits’ and a hardship balance that tips sharply towards the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). This analysis still requires a plaintiff to demonstrate a substantial case for relief on the merits. Leiva-Perez v. Holder, 640 F.3d 962, 967–68 (9th Cir. 2011). U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 28 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 plaintiff seeks a mandatory injunction that “goes well beyond simply 2 maintaining the status quo pendent lite . . . .” Stanley v. Univ. of S. Cal., 13 F.3d 3 1313, 1320 (9th Cir. 1994); see also Garcia v. Google, Inc., 786 F.3d 733, 740 4 (9th Cir. 2015) (en banc) (mandatory injunctions are those that “order[] a 5 responsible party to take action”) (citation omitted). Mandatory injunctions are 6 “particularly disfavored,” and requests for such relief are subject to “heightened 7 scrutiny.” Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). “In 8 general, mandatory injunctions are not granted unless extreme or very serious 9 damage will result and are not issued in doubtful cases.” Marlyn Nutraceuticals, 10 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (internal 11 quotation marks and citation omitted). Plaintiffs must “establish that the law and 12 facts clearly favor” their position on the facts and the law. Garcia, 786 F.3d at 13 740 (emphasis in original). 14 To the extent that Plaintiffs suggest that the Winter test is weakened in the 15 context of their RCRA claims, State Mot. 23, they are incorrect. The first prong 16 of Winter requires the moving party to establish that it is likely to succeed on the 17 merits of its claim, regardless of the legal standard applicable to that claim. In 18 addition, as discussed above, Plaintiffs’ request for a mandatory injunction 19 raises their burden even further. This heightened standard was recently 20 reinforced by an en banc panel of the Ninth Circuit. Garcia, 786 F.3d at 740. 21 Because a preliminary injunction is such an “extraordinary remedy,” the 22 legal remedies, separate from the equitable relief of an injunction, must be 23 inadequate to protect the plaintiff’s interests. Winter, 555 U.S. at 22; Weinberger 24 v. Romero-Barcelo, 456 U.S. 305, 312 (1982). In addition, because even a 25 permanent “injunction is a matter of equitable discretion[,] it does not follow 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 29 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 from success on the merits as a matter of course.” Winter, 555 U.S. at 32; 2 accord Weinberger, 456 U.S. at 313. ARGUMENT 3 4 I. 5 THE STATE’S MOTION FOR PRELIMINARY INJUNCTION SHOULD BE DENIED FOR LACK OF STANDING. 6 As discussed in the United States’ Motion for Judgment on the Pleadings, 7 ECF No. 110, the State’s Complaint should be dismissed, which would require 8 denial of the State’s motion for preliminary injunction. In addition, the United 9 States’ arguments in support of dismissal establish that the State is not likely to 10 succeed on its claims and that the State has not raised serious questions 11 regarding those claims. 12 II. 13 THE MOTIONS FOR PRELIMINARY INJUNCTION SHOULD BE DENIED BECAUSE PLAINTIFFS HAVE NOT DEMONSTRATED LIKELIHOOD OF SUCCESS ON THE MERITS. 14 A. The RCRA “Imminent and Substantial Endangerment” Standard. 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiffs incorrectly allege that chemical vapors from the tank farms at Hanford “may present an imminent and substantial endangerment to health or the environment” under RCRA section 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), relying primarily and sometimes exclusively on the asserted health-related effects on workers “exposed” to such vapors. State Mot. 25–30; Citizen Mot. 22–25. In order to demonstrate a likelihood of success on the merits to support their motions for a preliminary injunction, Plaintiffs must “establish that the law and facts clearly favor” their position. Garcia, 786 F.3d at 740 (emphasis in original). Plaintiffs have not met their heightened burden to demonstrate that they are clearly likely to establish that tank vapors may present an endangerment to workers that is both imminent and substantial. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 30 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 The analysis of whether an imminent and substantial endangerment may 2 be present is necessarily fact-driven and context-specific, taking into account the 3 totality of the circumstances. See, e.g., Interfaith Cmty. Org. v. Honeywell Int’l, 4 Inc., 188 F. Supp. 2d 486, 503 (D.N.J. 2002), aff’d in part, 399 F.3d 248 (3d Cir. 5 2005). In conducting that analysis, courts have given significant deference to the 6 judgment of governmental agencies tasked with protecting public health. See 7 Smith v. Potter, 187 F. Supp. 2d 93, 97 (S.D.N.Y. 2001) (“As the D.C. Circuit 8 has advised: ‘It is not the court’s role to second-guess scientific judgments of’ a 9 governmental agency that is responsible for protecting public health.” (citing 10 Am. Mining Cong. v. EPA, 907 F.2d 1179, 1187 (D.C. Cir. 1990))). 11 Notwithstanding Hanford Challenge’s assertion that their evidentiary burden can 12 be met through eyewitness accounts of workers, Citizen Mot. 23–24 (citing 13 Clean Water Act cases but no RCRA cases), that evidence is insufficient when 14 overcome with sound evidence of a scientific and technical nature. See, e.g., 15 Price v. U.S. Navy, 39 F.3d 1011, 1020 (9th Cir. 1994) (homeowner testimony 16 as to contamination deemed insufficient to support RCRA liability). 17 Courts have repeatedly emphasized the importance of the inclusion of the 18 word “may” in RCRA’s citizen suit provision. See, e.g., Cox v. City of Dallas, 19 256 F.3d 281, 299 (5th Cir. 2001). An “endangerment” is a “threatened or 20 potential harm and does not require proof of actual harm.” Cordiano v. Metacon 21 Gun Club, Inc., 575 F.3d 199, 211 (2d Cir. 2009). However, the statute also 22 requires that any potential endangerment is both imminent and substantial. To be 23 deemed “imminent,” “there must be a threat which is present now, although the 24 impact of the threat may not be felt until later.” Price, 39 F.3d at 1019 (emphasis 25 in original). To be deemed substantial, the endangerment must be “serious.” 26 Cmty. Ass’n for Restoration of the Env’t, Inc. v. Cow Palace, LLC, 80 F. Supp. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 31 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 3d 1180, 1227 (E.D. Wash. 2015) (citing Burlington N. & Santa Fe Ry. Co. v. 2 Grant, 505 F.3d 1013, 1021 (10th Cir. 2007)). See also Price, 39 F.3d at 1019; 3 Maine People’s Alliance v. Mallinckrodt, Inc., 471 F.3d 277, 288 (1st Cir. 2006) 4 (“[T]he courts have agreed that the word ‘substantial’ implies serious harm.”); 5 Interfaith Cmty. Org., 339 F.3d at 259 (citing with approval cases which stated 6 that “an endangerment is ‘substantial’ if it is ‘serious’” and that a RCRA 7 “endangerment is substantial if there is some reasonable cause for concern that 8 someone or something may be exposed to a risk of harm . . . if remedial action is 9 not taken” (internal citations omitted)). 8 Plaintiffs essentially ignore Congress’s use of “substantial” in addition to 10 11 “imminent” in specifying the necessary level of endangerment. See State Mot. 12 27; Citizen Mot. 21 (omitting the well-established Ninth Circuit rule that to be 13 substantial a risk must be “serious”). The State asserts that endangerment has 14 been established in numerous cases “by showing hazardous agents capable of 15 producing harm combined with a possibility that those agents can come in 16 contact with human and ecological receptors.” State Mot. 27. That is simply not 17 the case. Plaintiffs’ standard would disregard both the plausibility of exposure 18 pathways and the form and concentration of “hazardous agents.” Their net is 19 cast too wide, categorically sweeping in negligible risks and common everyday 20 8 21 22 23 24 25 26 In Mallinckrodt, upon which citizen plaintiffs rely extensively, the First Circuit pointed out that, “[w]ith one possible exception [of the Second Circuit], the [C]ourts [of Appeal] have agreed that the word ‘substantial’ implies serious harm.” 471 F.3d at 288 & n.8. After Mallinckrodt, the Second Circuit joined its sister circuits, holding that “an endangerment is ‘substantial’ if it is serious.” Cordiano, 575 F.3d at 210. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 32 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 actions, such as a homeowner properly handling used motor oil. Under the 2 State’s conception of the standard, countless American industrial workers would 3 face an imminent and substantial endangerment in the workplace. 4 Rather than simply recite the presence of hazardous waste and a 5 hypothetical exposure pathway, Plaintiffs must also demonstrate that the 6 currently-present risk reaches a serious level that warrants an additional 7 response. See Price, 39 F.3d at 1019 (“[E]ndangerment must be substantial or 8 serious, and there must be some necessity for the [injunctive] action.”); 9 Mallinckrodt, 471 F.3d at 282 (stating that, despite the existence of mercury 10 levels five times those in a comparable water body, the trial court “wisely 11 recognized that ‘the mere presence of mercury contaminated sediments is alone 12 not enough to constitute an imminent and substantial endangerment’”). 13 It is a founding principle of toxicology that “the dose makes the poison.” 14 Urie Decl. ¶ 16; see also Guidotti Decl. ¶ 21 (toxicological science has 15 demonstrated general relationship between intensity (concentration) and 16 duration of exposure in producing an adverse outcome); United States v. Vertac 17 Chem. Corp., 489 F. Supp. 870, 876, 879 (E.D. Ark. 1980) (“Considering the 18 toxicity alone of a chemical . . . is not sufficient to determine whether it is a 19 health hazard. The dosage and whether there is actual exposure to that chemical 20 and the extent of the exposure must also be considered.”). All of the cases that 21 the State cites to support its statement of RCRA’s imminent and substantial 22 endangerment standard recognize that basic scientific principle. Indeed, in each 23 of those cases, hazardous chemicals were found to exceed levels set by state or 24 federal regulatory authorities. See BNSF, 505 F.3d at 1022 (known carcinogens 25 present at levels exceeding EPA human health screening levels for industrial 26 outdoor workers was sufficient to create genuine issue of material fact as to U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 33 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 RCRA liability); Mallinckrodt, 471 F.3d at 284 (affirming RCRA liability 2 determination where lower court noted that consumption of fish from a river 3 would expose individuals to methylmercury levels higher than the EPA 4 reference dose and that numerous measures of sediment mercury levels 5 downriver exceeded an established standard, including one result over six times 6 that level); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11th Cir. 7 2004) (soil sample tests revealed levels of lead and PCB above Georgia’s 8 maximum regulatory standards); Cow Palace, 80 F. Supp. 3d at 1227–28 (nitrate 9 levels exceeded EPA-established maximum contaminant levels at 66 nearby 10 residences, with some testing at over five times the allowable level). 11 Additional case law cited by Hanford Challenge reflects the same pattern: 12 in each case, the court found a potential imminent and substantial endangerment 13 when the plaintiff demonstrated that contaminants exceeded established 14 regulatory levels. See Interfaith Cmty. Org., 399 F.3d at 261 (upholding an 15 imminent and substantial endangerment finding where: (1) soil levels exceeded 16 state’s acceptable level by an average of thirty times with levels up to 90 times 17 higher; (2) groundwater levels exceeded state standards by up to 8,000 times; (3) 18 surface water contamination was over 300 times higher than state standards; and 19 (4) river sediments exceeded then-tentative state standards by 90–400 times); 20 Vertac, 489 F. Supp. at 879, 885 (dioxin levels escaping plant reached 21 carcinogenic levels as determined by EPA); United States v. Conservation 22 Chem. Co., 619 F. Supp. 162, 183 (W.D. Mo. 1985) (RCRA liability found 23 where numerous carcinogens were discharged in excess of recommended 24 exposure level of zero). 25 26 Conversely, a number of courts have found that no potential imminent and substantial endangerment exists in cases where contaminants did not exceed U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 34 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 established regulatory levels and even in cases where contaminants did exceed 2 regulatory levels, but were nevertheless deemed insufficient on their own to 3 meet the RCRA standard. In Cordiano, despite a study showing lead 4 contamination of soil, wetland sediment, and wetland surface water exceeding 5 various state standards, the Second Circuit held that plaintiffs failed to 6 demonstrate: (1) a sufficient likelihood that contamination “will in fact result in 7 harm to human health or the environment”; and (2) the severity of any such 8 harm. 575 F.3d at 213. Notably, the court held that a reasonable jury could not 9 find that an imminent and substantial endangerment exists where the plaintiff 10 failed to establish the “degree of risk” as opposed to the mere “potential 11 exposure risk,” and plaintiffs could not demonstrate that “the potential harm at 12 issue rises to the level of a serious endangerment.” Id. at 214. In another recent 13 case, where evidence of potential exposure was lacking, the court granted 14 summary judgment to defendants on the grounds that insufficient evidence 15 supported a finding of imminent and substantial endangerment despite the fact 16 that over half of the samples tested (17 out of 36) exceeded a state regulatory 17 standard, including one by nearly 17 times the acceptable level. See H & H 18 Holding, L.P. v. Chi Choul Lee, No. CIV.A.12-5433, 2014 WL 958878, at *4 19 (E.D. Pa. Mar. 6, 2014); see also Foster v. United States, 922 F. Supp. 642, 662 20 (D.D.C. 1996) (absent evidence that buried contaminants above acceptable 21 levels are likely to migrate into groundwater, “plaintiff cannot establish either a 22 current risk of ‘substantial or serious’ threatened harm, or ‘some necessity for 23 action’”). While it may not be necessary for the endangerment to be quantified, 24 see Mallinckrodt, 471 F.3d at 288 (noting courts’ “reluctance to quantify the 25 needed level of harm [] precisely”); see also United States v. Union Corp., 259 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 35 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 F. Supp. 2d 356, 400 (E.D. Pa. 2003), Plaintiffs still bear the burden of 2 demonstrating that the alleged endangerment is substantial. 3 Finally, in determining whether an endangerment meets the substantiality 4 requirement, courts have looked to any remedial or protective measures in place 5 to abate the potential of harm. See, e.g., BNSF, 505 F.3d at 1021 (“[A]n 6 endangerment is substantial where there is reasonable cause for concern that 7 someone or something may be exposed to risk of harm by release, or threatened 8 release, of hazardous substances in the event remedial action is not taken.”); 9 Smith, 187 F. Supp. 2d at 95 (“The Court finds that the USPS has taken 10 appropriate remedial measures to diminish any safety risk created by the 11 presence of anthrax at the Morgan Facility.”). In this matter, there are substantial 12 protective measures in place to protect workers. Therefore, a preliminary 13 injunction is not appropriate here. 14 As discussed further below, Plaintiffs fail to meet these standards. For 15 example: their allegations regarding potential health effects fail for numerous 16 reasons; voluminous personal sampling results from the tank farms show levels 17 far below the OELs; and Plaintiffs’ efforts to overcome their lack of evidence 18 are unavailing because, among other things, the postulated “bolus” theory on 19 which they rely is unproven and highly questionable. As a result, Plaintiffs have 20 not demonstrated that “extreme or very serious damage will result” absent 21 imposition of a mandatory injunction, Marlyn Nutraceuticals, 571 F.3d at 879, 22 and they fail on prong one of the Winter analysis that looks to likelihood of 23 success on the merits. 24 25 B. The Alleged Health Effects do Not Support a Claim of Substantial Endangerment. 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 36 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Plaintiffs focus heavily, and often exclusively, on reported AOP-15 events 2 to support their arguments regarding an imminent and substantial endangerment. 3 See State Mot. at 25, 30; see also Citizen Mot. 22–25. Such reliance is 4 misplaced because Plaintiffs’ analysis is superficial and flawed. In particular, 5 Plaintiffs inappropriately focus on a narrow subset of workers, many of whom 6 reported no symptoms, and ignore key factors related to the reported symptoms, 7 including the prevalence of such symptoms in the general population, the 8 follow-up medical results from the AOP-15 process, and the ongoing health 9 monitoring of the tank farm workers. 10 The State incorrectly points to the fact that approximately fifty people 11 visited the Hanford medical contractor following an “AOP-15” event in the 12 spring of 2016 as de facto evidence of an imminent and substantial 13 endangerment attributable to tank farm vapors. See State Mot. at 25, 30; see also 14 Citizen Mot. 22–23. The reporting of AOP-15 events by a small subset of 15 workers does not mean that there is an imminent and substantial endangerment. 16 As an initial matter, comparing the number of AOP-15 events with the number 17 of tank farm entries shows that the reports alone—setting aside, for example, 18 whether any reported symptoms are attributable to vapors—occur very rarely. 19 As discussed above, between January 1, 2014, and July 31, 2016, 134 workers 20 (96 of whom reported symptoms) were involved in AOP-15 events, as compared 21 to, for example, the approximately 195,000 tank farm entries during that period. 22 Supra at 15; Fletcher Decl. ¶ 60. 23 Furthermore, the reporting of an AOP-15 event does not necessarily mean 24 that there has been an exposure to a chemical present in tank vapors; analysis of 25 some AOP-15 events shows that the likely source of the odors was unrelated to 26 tank vapors. Urie Decl. ¶ 45. In addition, the presence of odors from chemicals U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 37 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 in the tank vapors does not mean that workers have been exposed to harmful 2 concentrations of those chemicals. For example, people typically smell ammonia 3 odors at concentrations of two to five parts per million, and some smell the 4 odors at 0.04 parts per million. Watson Decl. ¶ 10. But the extremely 5 conservative Administrative Control Level for ammonia at the tank farms— 6 which is a mere 10% of the most conservative OEL established by ACGIH or 7 OSHA—is 2.5 parts per million. Id. Accordingly, for chemicals with irritating 8 properties, such as ammonia, it is common for workers to report complaints of 9 exposure at levels far below the OELs, and for workers to confuse exposure—no 10 matter how slight—with overexposure involving a potential risk of lasting health 11 effects. Id. 12 Plaintiffs also are incorrect to rely on their argument that the reported 13 symptoms are “consistent with” potentially harmful effects from tank vapor 14 chemicals. See, e.g., State Mot. at 30. The alleged “consistency” is far removed 15 from the issue of whether the reported symptoms may be fairly attributed to 16 chemicals in tank farm vapors. Declaration of Dr. Herman J. Gibb in Supp. Of 17 U.S. Resp. to Mots. For Prelim. Inj. (“Gibb Decl.”), ¶¶ 13, 18. Plaintiffs ignore 18 the more fundamental question of whether tank farm workers have a greater 19 “relative risk”—which involves a comparison of risk between exposed and 20 unexposed individuals—of having such symptoms or health-related effects. Id. 21 ¶¶ 16–18, 42. 22 Even the small percentages of workers whom Plaintiffs’ experts allege 23 reported various symptoms are based on a manipulation of the data and are 24 potentially misleading. Id. ¶¶ 14–18. The percentages only account for workers 25 who reported symptoms. Id. ¶¶ 15–16. Accordingly, if five out of 100 workers 26 involved in AOP-15 events reported symptoms, and all five included headache, U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 38 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 then Plaintiffs’ experts would have reported the percentage for headache as 2 100% even though only 5% of such workers experienced that symptom. Id. ¶ 15. 3 Moreover, Plaintiffs’ experts essentially “look under the street lamp” and ignore 4 the vast majority of workers who were not involved in AOP-15 events. Id. ¶ 16. 5 While Plaintiffs assert that workers’ reported symptoms are “consistent 6 with” chemical exposure, that argument falls far short of showing that the 7 reported symptoms may fairly be attributed to chemicals in tank farm vapors. 8 Gibb Decl. ¶ 13; Guidotti Decl. ¶ 57. The common symptoms reported by the 9 small subset of workers are “consistent with” a vast variety of conditions. Gibb 10 Decl. ¶¶ 19–20; Guidotti Decl. ¶ 57. For example, Plaintiffs’ experts discuss 11 headache as the most common symptom. Declaration of Dr. Tim K. Takaro in 12 Supp. of Citizen Plfs’ Mot. for Prelim. Inj. (“Takaro Decl.”), ECF No. 78, ¶ 15, 13 Table 2; Declaration of Joyce Tsuji in Supp. of Plf. State of Washington’s Mot. 14 for Prelim. Inj. (“Tsuji Decl.”), ECF No. 52, ¶ 20, Table 4. But the World Health 15 Organization estimates that one half to three fourths of adults have had a 16 headache in the past year. Gibb Decl. ¶ 20. Indeed, “[h]eadache is a common, 17 nonspecific condition that can be caused by many factors . . . It is among the 18 most common complaints in medicine and is recognized to be highly non- 19 specific.” Guidotti Decl. ¶ 28. Headache is “unreliable as a symptom of toxicity 20 when taken in isolation and cannot be construed in isolation and without further 21 evaluation as a neurological manifestation of disease.” Id. 22 Plaintiffs’ experts also discuss a non-specific and vague symptom 23 category that they label “upper airway effects,” but upper respiratory symptoms 24 are experienced by virtually everyone. Gibb Decl. ¶ 21. Adults develop an 25 average of two to four colds every year, and acute pharyngitis (inflammation of 26 the throat) results in seven million annual adult visits to outpatient and U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 39 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 emergency departments. Id. The reported symptom of “dizzy, lightheaded, 2 disoriented” is similarly common. Id. ¶ 22. According to a 1998 study, 3 approximately 20% of persons in a working age population reported dizziness in 4 the previous month, and the study concluded that “[d]izziness is a common, 5 chronic, and often untreated symptom in people aged 18–65 years.” Id. As 6 another example, Plaintiffs’ experts include the symptom of “metallic/bad 7 taste.” Takaro Decl., ¶ 15, Table 2; Tsuji Decl., ¶ 20, Table 4. But a transient 8 metallic taste in the mouth is a common symptom associated with dry mouth, 9 and other causes include gum disease, the common cold, sinus infection and 10 allergies, certain medications, pregnancy and nicotine patches. Guidotti Decl. ¶ 11 32; Gibb Decl. ¶ 24. 9 Plaintiffs also rely improperly on reports of nosebleeds. See State Mot. 11, 12 13 20; Cit. Mot. 1, 6, 9. Epistaxis—the medical term for a nosebleed—is very 14 common and has many causes, including: injury to the inside of the nose; dry air 15 and dessication (drying out) of the inside of the nose; unusually fragile blood 16 vessels in the nose; high blood pressure; anticoagulation; low platelet count or 17 dysfunction; and a stress response leading to transient high blood pressure, 18 usually occurring in connection with extreme anxiety or anticipation of threat. 19 Guidotti Decl. ¶ 29. However, “[t]oxic inhalation is not among the recognized 20 causes of epistaxis . . . . Unless accompanied by severe respiratory disease 21 reflecting massive damage to the respiratory tract, epistaxis in toxic inhalation is 22 23 24 9 25 26 Even Plaintiffs’ expert, Dr. Tsuji, states that “other substances and drugs” may produce metallic taste. Tsuji Decl. ¶ 87. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 40 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 so exceedingly rare as to cast doubt on the diagnosis by its presence, especially 2 in the absence of eye injury . . . .” Id. 10 Plaintiffs fare no better in establishing their claim through declarations 3 4 from Hanford tank farm workers. Those declarations are largely unsupported by 5 medical documentation and fit the same basic pattern described above—that is, 6 the reported symptoms typically are common and may be attributed to causes 7 other than chemicals in vapors. For example, the State points to one declarant 8 who concluded that he had developed an occupational lung disease. However, 9 the declarant’s medical report clearly shows that a chest film demonstrated 10 pleurisy, which is not a sign of toxic inhalation. Guidotti Decl. ¶ 49. Rather, 11 pleurisy is almost always caused by a viral infection, as reportedly stated by the 12 declarant’s attending physician. Id. Similarly, another declarant stated that he 13 had nosebleeds and had reported an exposure to odor in January, 2010. Id. ¶ 51. 14 However: neither the incident nor the additional symptoms discussed by the 15 declarant are supported by any medical records; the declarant reports having 16 17 10 18 19 20 21 22 23 24 25 26 The other symptoms identified by Plaintiffs include “lower respiratory effects,” “nausea/upset stomach,” and “burning/watery eyes,” also are common in the general population and are not necessarily related to chemicals in vapors. Gibb Decl. ¶¶ 23, 25, 26. In addition, the relative dearth of reports of eye irritation among the symptoms reported calls further into question Plaintiffs’ supposition that the symptoms resulted from vapor chemicals. Guidotti Decl. ¶ 24 (“Because inhalation of irritant gases and vapors is usually accompanied by exposure of the eyes, it is very common for toxic inhalation to be accompanied by eye irritation.”). U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 41 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 “very high” blood pressure, which is a major cause of nosebleeds; and, in 2 contrast, toxic inhalation is not a cause of nosebleeds. Id. ¶¶ 29, 51. In addition, the State contends that one declarant was overexposed to 3 4 mercury, but the mercury data on the AOP-15 Industrial Hygiene Investigation 5 Report attached to the declaration is incorrect. That copy of the report 6 erroneously overstates the mercury data by a factor of 1 million because it 7 includes the wrong unit of measure (stating the reading as six milligrams per 8 cubic meter versus six nanograms per cubic meter). Urie Decl. ¶ 58. 9 Accordingly, the correct measurement was well below the exposure limit of .025 10 milligrams per cubic meter. Id. A correction to the report was made and 11 finalized, but the earlier, incorrect version of the report is attached to the 12 declaration. Id. Moreover, the declarant does not exhibit numerous signs of 13 overexposure to mercury, which further suggests that no such overexposure 14 occurred. Guidotti Decl. ¶ 47. See also id. ¶¶ 50, 52–56 (discussing other 15 individual declarants’ allegations); Gibb Decl. ¶ 30, 33–38 (also discussing 16 individual declarants’ declarations). Consistent with comparisons to the general population, the extensive data 17 18 from studies of tank farm and other Hanford workers refute Plaintiffs’ attempts 19 to link health effects to working in the tank farms. For example, Plaintiffs point 20 to the case of one worker who stated that her liver enzymes were “elevated” 21 after short-term exposure to an isolated spill incident in 2007. See Takaro Decl., 22 ¶ 25. 11 Liver enzymes can be elevated for a host of reasons, however, and a 23 11 24 25 26 This isolated spill incident is entirely separate and different from the vapor “exposures” during ongoing tank farm work that are the subject of Plaintiffs’ complaints. In addition, the incident occurred more than nine years (Footnote continued on next page…) U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 42 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 subsequent analysis of over 9,000 liver function tests among the Hanford 2 workforce concluded that “[t]here did not appear to be any influence on liver 3 function test results by enrollment in the Tank Farm Program” after controlling 4 for other differences such as Body Mass Index. Gibb Decl. ¶ 30. Similarly, 5 although Plaintiffs focus on reports of lower respiratory symptoms, tests of over 6 6,400 Hanford workers showed that “[t]here did not appear to be any influence 7 on pulmonary obstruction by enrollment in the Tank Farm Worker Program . . . 8 .” Gibb Decl. ¶ 32. Finally, Plaintiffs’ focus on the adverse effects of mercury 9 and dimethylmercury exposure is similarly misplaced because: the mean values 10 from 2,200 test results for mercury in blood and urine among the Hanford 11 workforce were well below the laboratory reference range; a review of medical 12 surveillance reports from 2000–2016 shows that no urine samples exceeded the 13 Biological Exposure Indices for mercury, Urie Decl. ¶ 79; and a detailed review 14 and analysis of mercury sampling data and health information showed an 15 absence of a sufficient dose to be harmful. Urie Decl., ¶ 79; Gibb Decl. ¶¶ 51– 16 58. 12 17 18 19 20 21 ago, and so is not relevant to whether an “imminent and substantial endangerment” exists now or whether the extraordinary relief of a preliminary injunction is warranted. Gibb Decl. ¶ 30. 12 22 23 24 25 26 Relatedly, aggregate health data—including from, inter alia, AOP-15 reports and worker evaluations, tank farm worker annual surveillance exams, worker’s compensation data, special studies of tank farm workers, former worker surveillance exams, and cohort mortality studies—have not detected pervasive or systematic health effects associated with exposure to tank farm (Footnote continued on next page…) U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 43 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 In sum, the transient, common symptoms reported by a small subset of 2 Hanford workers do not state a viable claim of vapor-caused health effects. See, 3 e.g., Guidotti Decl. ¶ 57 (“The evidence presented [by Plaintiffs] is largely 4 contradictory and implausible for nontrivial human health effects and relies 5 heavily on anecdotal reporting of nonspecific symptoms and signs . . .”). 6 Accordingly, Plaintiffs have not carried their burden to show that Hanford tank 7 vapors may present an imminent and substantial endangerment. 8 C. Sampling Data Do Not Show Over-Exposure to Vapor Chemicals. 9 While the presence or absence of chemicals at levels exceeding those set 10 by regulatory authorities to protect human health or the environment may not be 11 dispositive in a RCRA imminent and substantial endangerment analysis, those 12 levels are highly relevant. See, e.g., Interfaith Cmty. Org., 399 F.3d at 261 13 (“Proof of contamination in excess of state standards may support a finding of 14 liability, and may alone suffice for liability in some cases, but its required use is 15 without justification in the statute.”). In fact, in each of the cases cited by 16 Plaintiffs in which parties were found liable under RCRA, see State Mot. 26–27; 17 Citizen Mot. 19–22, hazardous chemicals were present at levels in excess of 18 standards established by federal or state regulators. Furthermore, Plaintiffs cite 19 no personal sampling data in worker breathing zones that exceed the OELs 20 established by leading occupational health and industrial hygiene organizations, 21 and adopted or developed by DOE for the tank farms. 22 23 24 25 26 vapors. Urie Decl. ¶ 82. Hanford historically has lower rates of recordable injuries and illnesses than comparable DOE sites, and former Hanford workers live longer than the general population and experience fewer cancer deaths. Id. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 44 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 That conclusion is not altered by the data on which Plaintiffs rely, which 1 2 focus on the chemical concentrations at the ventilation stacks or in the tank 3 headspaces, as opposed to the extensive personal sampling data, which shows 4 concentrations in worker breathing spaces. See, e.g., Cit. Mot. at 9; Tsuji Decl. 5 ¶¶ 14–19. See, e.g., Tsuji Decl. ¶ 54 (ammonia). Reliance on stack and 6 headspace measurements is seriously flawed and misleading because those 7 measurements do not show what the concentrations of chemicals are in the air 8 that the workers actually breathe after the air emitted from the tanks has 9 dispersed. See, e.g., Urie Decl. ¶ 31. The tank farm workers never perform work 10 within the underground tanks themselves. Id. ¶ 10. At the Hanford tank farms, 11 which are outdoors, there is significant dilution of the chemicals between the 12 points where they are emitted and where workers may breathe them. Id.13 13 14 13 15 16 17 18 19 20 21 22 23 24 25 26 In addition, under longstanding protocol, there are scientifically-based “vapor control zones” where workers are required to wear SCBA, based on the possibility that chemical concentrations may reach 50% of an OEL. Urie Decl. ¶ 55. Accordingly, for example, prior to the HAMTC “stop work” and the interim measures agreed to in connection with this preliminary injunction briefing, any work performed at or within five feet of the double shell tank ventilation stacks (the emission points for which are 20–50 feet above the ground) would require the use of SCBA. Id. The single shell tanks are passively ventilated through lower-level breather filters but, again consistent with longstanding protocol, no workers may enter the “vapor control zone” surrounding those emission points without using SCBA or other supplied air. Id. The sizes of vapor control zones are established through a conservative process based on air modeling techniques (Footnote continued on next page…) U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 45 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 Far from supporting Plaintiffs’ claims, the data overwhelmingly support 2 the conclusion that workers have not been exposed to chemicals at dangerous 3 levels. In addition to showing that the chemical concentrations at or near the 4 workers’ breathing zones did not exceed the OELs, voluminous personal 5 sampling data in recent years shows that, with very few exceptions, the results 6 were far below the OELs. As discussed above, for example, for the eight -hour 7 time-weighted average OEL and the short term exposure, excursion, and ceiling 8 limits, there were nearly 164,000 sample results. Only 72 were even above 10% 9 of the respective OEL, and there were no exceedances. See supra at 23–24. In 10 summary, the “measured concentrations of airborne chemicals have been far 11 below levels expected to cause toxic effects.” Guidotti Decl. ¶ 21. Consequently, 12 Plaintiffs have no likelihood of showing that the vapors in the Hanford tank 13 farms may present an imminent and substantial endangerment. 14 15 16 17 18 19 20 21 22 23 D. Plaintiffs’ Other Attempts to Establish That Conditions May Present an Imminent and Substantial Endangerment Are Unavailing. In support of its imminent and substantial endangerment argument, the State points to the postulated “bolus theory” set forth in the TVAT Report to explain why workers report symptoms in the absence of any monitoring data showing levels of chemical vapors at or near the OELs. See State Mot. 29; cf. Citizen Mot. 26 (acknowledging that “TVAT was unable to exactly ‘identify the mode or mechanism by which the exposures are generated’”) (quoting TVAT Report at 9). The State’s reliance steadfast reliance is misplaced because the 24 25 26 that are more current than the one used in the TVAT Report and cited by Plaintiffs. Id. ¶¶ 75–77. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 46 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 bolus hypothesis is just that: an hypothesis with no empirical support to date. 2 See, e.g., TVAT Report at 9 (Exhibit 1 to Fletcher Decl.); Urie Decl. ¶ 33; 3 Fletcher Decl. ¶ 48; Watson Decl. ¶ 18; Gibb Decl. ¶¶ 39–47, 59–61, 63. The 4 hypothesis is based partly on odor perception, which is not reliable for 5 determining whether a hazard is present. Guidotti Decl. ¶¶ 33–42; Watson Decl. 6 ¶ 10. Moreover, the analysis that underpins it is questionable and the existing 7 data do not support it. Guidotti Decl. ¶¶ 33–42; Gibb Decl. ¶¶ 39–47, 59–61, 63. 8 So while DOE and WRPS have implemented, and will continue to implement, 9 the recommendations of the TVAT Report, which include installing ever-more- 10 sophisticated monitoring, sampling and other detection equipment, bolus events 11 remain hypothetical and unproven. Urie Decl. ¶ 33; Fletcher Decl. ¶ 52–58; 12 Watson Decl. ¶ 14–15; Gibb Decl. ¶¶ 39–47, 59–61, 63; Guidotti Decl. ¶ 33–42. 13 Thus, the bolus theory does not provide a reasonable basis for an imminent and 14 substantial endangerment finding here. Plaintiffs also improperly rely on outdated modeling data discussed in the 15 16 2014 TVAT Report to suggest that workers are being exposed to high chemical 17 concentrations in the tank vapors. See State Mot. 20. The TVAT Report relies 18 on a 2004 “Droppo” model, which is a simplified air plume spreadsheet tool. 19 See Urie Decl. ¶ 75. PNNL’s ongoing assessment of the Droppo model, among 20 others, indicates that it overestimates predicted chemical concentrations by a 21 factor of 2–4. Id. 14 Moreover, the TVAT Report did not address the thousands of 22 sampling data points, including short-term sampling results from several years 23 prior to the TVAT Report, which showed that chemical concentrations in the 24 14 25 26 As discussed above, WRPS recently began using newer and better air dispersion models. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 47 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 workers’ breathing zones were far below OELs. See Gibb Decl. ¶ 61. 2 Furthermore, the personal sampling data continue to show that chemical 3 concentrations in workers’ breathing spaces are well below the OELs. See supra 4 at 23–24; Urie Decl. ¶ 56–57; Gibb Decl. ¶ 61. Basic industrial hygiene practice 5 calls for such data to be considered. See Urie Dec. ¶ 38. 6 Plaintiffs also suggest that the sampling and monitoring programs at the 7 tank farms have been inadequate, State Mot. 29; Cit. Mot. 8, but their criticisms 8 are unsupported and are not based on the current or recent sampling occurring at 9 the tank farms. Urie Decl. ¶¶ 25, 34–40. In fact, the sampling program is 10 extraordinary, including in the equipment used, the frequency of sampling, and 11 the number and type of samples collected. Watson Decl. ¶ 6–8. NIOSH 12 previously expressed its approval of both the area and personal sampling that 13 occurred at the tank farms during the 2008-2013 period. Urie Decl. ¶ 39, id. Ex. 14 J (discussing September, 2013 letter from NIOSH, stating that WRPS took tens 15 of thousands of measurements according to methods prescribed by OSHA, 16 NIOSH, or other reputable sources). Moreover, DOE and WRPS continue to 17 make improvements by evaluating ever-more cutting edge technologies that are 18 among the most advanced and expensive available for measuring vapor 19 concentrations. Watson Decl. ¶¶ 14–16; see also Fletcher Decl. ¶¶ 52–54, 59. 20 Although Plaintiffs assert that modeling and planning does not account for 21 waste-disturbing activities, that assertion is outdated. State Mot. 10. WRPS has 22 built on Hanford’s pre-2008 practice, which typically involved tank headspace 23 and vapor sampling under static conditions, by administering exhaust stack 24 sampling during waste-disturbing activities. Urie Decl. ¶ 14–15. Specifically, 25 during tank waste retrievals, WRPS has performed stack sampling at both the 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 48 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 single-shell tank undergoing retrieval and at the recipient double shell tank’s 2 active exhaust system. Id. 3 In addition, Plaintiffs incorrectly assert that there is no short-term 4 sampling program at the tank farms to address potential transient exposures to 5 chemical vapors. State Mot. 15. However, DOE directed WRPS to address 6 potential transient exposures to vapors in 2009. Urie Decl. ¶ 47. In response, 7 WRPS added short-term 30-minute “excursion” sampling to the exposure 8 assessment process. Id. This approach traditionally has been the most 9 conservative (and thus, protective) personal sampling process available. Id. ¶ 22. 10 Pursuant to the Implementation Plan, WRPS is currently exploring the use of 11 personal grab sampling equipment, such as SUMMA canisters designed to 12 capture any vapors present at or near a workers’ breathing zone. Urie Decl. ¶ 13 40. In addition, other short-term personal sampling—for STEL and ceiling 14 levels—also has been occurring since that time period. Urie Decl. ¶ 56. Finally, 15 DOE and WRPS continue to explore and employ new technologies, methods 16 and analyses, in part to further assess the bolus hypothesis. Urie Decl. ¶¶ 33,79; 17 Watson Decl. ¶ 14–16; Gibb Decl. ¶¶ 51–58. 18 Finally, while the State argues that the use of OELs is unreliable, the State 19 fails to acknowledge that: reliance on established OELs is standard practice; that 20 the extra OELs developed by DOE are based on sound science; and that extra- 21 conservative controls used at the tank farms are set at levels reflecting a fraction 22 of the OELs. See e.g., Urie Decl. 18–22; Watson Decl. 10–11. And as discussed 23 above, the extremely large volume of personal sampling data indicates that all 24 exposures were below the OELs and that 98.8% of the results have been below 25 10% of the OELs. See supra at 23–24; see also Guidotti Decl. ¶ 21. 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 49 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 Overall, while Plaintiffs are correct that actual harm need not occur for a 1 2 court to find that conditions may present an imminent and substantial 3 endangerment, the risk of harm must be present and it must be serious. For the 4 reasons discussed above, Plaintiffs cannot meet their heightened burden of 5 “establish[ing] that the law and facts clearly favor” their position, Garcia, 786 6 F.3d at 740 (emphasis in original), and their motions for a preliminary injunction 7 should be denied on that basis. 8 9 10 III. PLAINTIFFS WOULD NOT SUFFER IRREPARABLE HARM IN THE ABSENCE OF AN INJUNCTION. To obtain a preliminary injunction, a plaintiff must establish that 11 “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 12 22 (emphasis in original). “Speculative injury does not constitute irreparable 13 injury.” Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 14 1984). Unsupported statements are insufficient to prove irreparable harm. See 15 Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989, 1000 (9th 16 Cir. 2011) (corporation’s evidence that “consists primarily of the 17 unsubstantiated testimony of its President” was not sufficient for court to find 18 irreparable harm); see also Ukiah Valley Med. Ctr. v. Fed. Trade Comm’n, 911 19 F.2d 261, 264 n.3 (9th Cir. 1990) (“[T]here is no substantial evidence of a 20 ‘direct and immediate effect’ . . .” where plaintiffs “offer only a conclusory 21 statement . . .”). 22 Plaintiffs have failed to meet their burden of establishing irreparable 23 injury, primarily for the reasons discussed above, including their misplaced 24 reliance on reports of medical issues and because they have failed to cite 25 evidence establishing that workers have been exposed to dangerous 26 concentrations of chemicals in their breathing zones. Indeed, Plaintiffs rely on U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 50 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 unsubstantiated speculation that tank farm workers have suffered any harm from 2 exposure to vapors in the tank farms. Accordingly, they will not suffer 3 irreparable harm if their motions are denied. 4 In addition, a plaintiff’s delay in seeking a preliminary injunction further 5 undermines its allegations of harm. The delay here—where many of Plaintiffs’ 6 allegations of harm date back several years—undercuts Plaintiffs’ allegations of 7 irreparable harm and their alleged need for the injunction. See Beame v. Friends 8 of the Earth, 434 U.S. 1310, 1313 (1977) (“The applicants’ delay in filing their 9 petition and seeking a stay vitiates much of the force of their allegations of 10 irreparable harm.”); see also Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 11 F.2d 1374, 1377 (9th Cir. 1985); Lydo Enters. v. Las Vegas, 745 F.2d 1211, 12 14 1213-1214 (9th Cir. 1984). IV. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST FAVOR DENIAL OF THE MOTIONS FOR PRELIMINARY INJUNCTION. 15 Even assuming, arguendo, that Plaintiffs were able to establish a 13 16 likelihood of irreparable harm, that harm would need to be weighed against the 17 significant harm that would result if the injunction were to issue. In cases where 18 a public interest is involved, plaintiffs must show that the public interest favors 19 them. Fund for Animals v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992). 20 Assessing the harm to the opposing party and weighing the public interest 21 “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 22 418, 435 (2009). In considering whether to grant a preliminary injunction, a 23 court must balance the competing claims of injury and “pay particular regard for 24 the public consequences in employing the extraordinary remedy of injunction.” 25 Winter, 555 U.S. at 24 (quoting Weinberger, 456 U.S. at 312 (internal quotation 26 marks omitted)); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 51 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 (1987). Indeed, if an injunction will “adversely affect a public interest . . . the 2 court may . . . withhold relief until a final determination of the rights of the 3 parties, though the postponement may be burdensome to the plaintiff.” 4 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138-39 (9th Cir. 2009) (quoting 5 Weinberger, 456 U.S. at 312–13). 6 A. Plaintiffs Incorrectly Argue Costs Versus Worker Protection. 7 Plaintiffs incorrectly characterize the balance of harms issue as one of 8 costs versus worker safety, and argue that temporary economic injury should not 9 outweigh the alleged harms to workers. State Mot. 33–34; Citizen Mot. 30. 15 But 10 as discussed above, the tank farm workers are not suffering cognizable harm 11 from exposure to tank vapors and the measures in place already provide 12 appropriate protections based on available data. In addition, these practices and 13 protections are far greater than what is provided at other facilities. Watson Decl. 14 ¶¶ 6–8, 14–15; Urie Decl. ¶¶ 52, 84. Moreover, while DOE obviously needs to spend taxpayer dollars 15 16 carefully, costs are not the driver for DOE’s decisions regarding industrial 17 hygiene and worker safety issues at the tank farms. Urie Decl. ¶¶ 25, 53. DOE’s 18 ongoing cleanup of waste at Hanford is not a for-profit venture. Instead, the 19 decisions regarding industrial hygiene and worker safety are driven by complex 20 15 21 22 23 24 25 26 Hanford Challenge does not separately address the public interest factor, and the only argument that they make about the balance of hardships is that DOE and WRPS may suffer economic consequences. Citizen Mot. 29–30. As discussed here, this argument is incorrect, including because it minimizes the serious impacts to the ongoing work at the tank farms that would result from issuance of Plaintiffs’ requested relief. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 52 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 technical considerations, consistent with the information obtained from, inter 2 alia, the cutting-edge monitoring and sampling performed at the Site. See Urie 3 Decl. ¶¶ 34–40; Fletcher Decl. ¶¶ 52–54, 59; Watson Decl. ¶¶ 6–8, 14–15. 4 Based on those considerations and data, DOE is taking the appropriate steps to 5 address worker safety. Indeed, DOE already has spent approximately $50 6 million in connection with implementing the recommendations in the TVAT 7 Report, and another $45 million for SCBA in the last two fiscal years. Fletcher 8 Decl. ¶ 50. Imposing additional costs on DOE that are unwarranted from a 9 worker-protection standpoint would be harmful to DOE’s cleanup mission. And 10 contrary to Plaintiffs’ suggestion, those costs would not be temporary, because 11 the taxpayers would not later recoup those extra costs. See, e.g., Cal. 12 Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 853 (9th Cir. 2009) 13 (economic harm that cannot be remedied constitutes irreparable harm), vacated 14 on other grounds by Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S. Ct. 15 1204 (2012). 16 17 B. The Public Has a Significant Interest in the Timely Cleanup of the Tank Waste at Hanford. 18 In purporting to address the balance of equities and the public interest, 19 Plaintiffs ignore entirely the broad public interest in a prompt cleanup at 20 Hanford, including the tank farms. Particularly given the State’s prior litigation 21 of related issues—as described above, it is a party to a Consent Decree in this 22 Court that requires DOE to meet certain milestones for tank waste retrieval— 23 24 25 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 53 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 Plaintiffs’ failure to mention, let alone address, these significant interests is 2 troubling. 16 The Hanford Site cleanup is an epic endeavor that has, as its core purpose, 3 4 the protection of human health and the environment. See Tri-Party Agreement, 5 Art. III, ¶ 14.A. As summarized in the Background section above, the cleanup of 6 the 586-square mile Site is multifaceted and, especially with respect to tank 7 waste, technically and logistically complex. The tank waste retrieval mission is a 8 necessary predicate to the safe feeding of waste into the Waste Treatment Plant 9 that, once constructed, will separate and ultimately vitrify (encase in glass) all of 10 the high-level waste and a large portion of the low-activity waste stored in the 11 tank farms. See http://wrpstoc.com/tank-operations/waste-treatment-plant- 12 integration/; http://www.hanford.gov/page.cfm/ORP/WasteTreatmentPlant. This 13 public interest in a safe and efficient cleanup has been recognized by Congress 14 and this Court. 15 1. Congress Has Recognized the Public Interest in DOE’s Timely Cleanup of the Hanford Site. 16 17 18 19 16 20 potential effects of this litigation on the pace of tank retrieval work, DOE 21 advised the State on September 15, 2016, that DOE was assessing whether 22 milestones in the Consent Decree could be affected. In response, the 23 Washington Attorney General stated that it was “pathetic” for DOE to use “the 24 safety of workers as an excuse for missing more deadlines.” http://www.tri- 25 cityherald.com/news/local/hanford/article103078222.html. Indeed, even now the State continues to press for speed. Due in part to the 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 54 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 Where Congress has recognized the need to take action, and an agency is 2 effectuating congressional intent, courts have concluded that the agency’s action 3 is in the public interest. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 4 1292 (9th Cir. 2013) (determining that development of outer continental shelf 5 was a public interest recognized by Congress, referencing 43 U.S.C. § 1332(3)). 6 DOE’s remediation of the Hanford Site falls squarely within this category. 7 Congress has directed DOE to safely treat and dispose of the waste at the 8 Hanford Site, and has appropriated substantial funds for this purpose. See 42 9 U.S.C. § 7112(13) (stating one purpose of DOE is “to advance the goals of 10 restoring, protecting, and enhancing environmental quality, and assuring public 11 health and safety”); P.L. 114-113, 129 Stat. 2242, 2412 (2015) (appropriating 12 funds for DOE to carry out defense-related environmental cleanups). In recent 13 years, Congress has appropriated approximately $2 billion for Hanford cleanup 14 activities, with approximately half of that amount dedicated to the tank waste 15 retrieval and treatment missions; for fiscal year 2016, $649 million were 16 allocated for the tank farms. See 161 Cong. Rec H10118-19 (daily ed. Dec. 17, 17 2015) (explanatory statement regarding Consolidated Appropriations Act, 18 2016). Thus, DOE’s activities in support of that mission, including its work in 19 the tank farms, is in the public interest. 20 21 22 23 24 25 26 2. This Court Has Emphasized the Significant Public Interest in Prompt Cleanup at Hanford, Including an Expedited Schedule For Retrieving Tank Farm Waste. The State’s failure to discuss the significant public interest in the Hanford cleanup is particularly glaring because DOE has spent years in litigation with the State over the pace of the Hanford cleanup. In that litigation, the State has pressed repeatedly for the cleanup to be expedited and completed more quickly. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 55 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 The results of that litigation include a series of decisions from this Court setting 2 deadlines for both retrieving waste from certain single-shell tanks and building 3 the Waste Treatment Plant. 4 In that litigation, Judge Peterson determined that slowing the tank waste 5 retrieval process “is detrimental to the public interest” because it “expos[es] the 6 public to more waste over a longer period of time.” Order Regarding Mots. to 7 Amend Consent Decrees, Civ. No. 2:08-CV-5085-RMP, ECF No. 139 at 61 8 (May 11, 2015). The State argued in those proceedings that the possibility of 9 leaks from single shell tanks “will only increase as time passes,” State’s Resp. to 10 U.S. Mot. to Modify Consent Decree, Civ. No. 2:08-CV-5085-RMP, ECF No. 11 102 at 39 (Dec. 5, 2014). Judge Peterson agreed, stating that “time is of the 12 essence.” Third Order Regarding Mots. to Amend Consent Decrees, Civ. No. 13 2:08-CV-5085-RMP, ECF No. 221 at 5 (Mar. 11, 2016). 14 This Court also has assessed the public interest in the Hanford Site 15 cleanup in ruling that other citizen challenges to Hanford cleanup efforts were 16 barred under CERCLA section 113(h), 42 U.S.C. § 9613(h). Heart of Amer. Nw. 17 v. Westinghouse Hanford Co., 820 F. Supp. 1265, 1283 (E.D. Wash. 1993); 18 Hanford Downwinders Coal., Inc. v. Dowdle, 841 F. Supp. 1050, 1059 (E.D. 19 Wash. 1993). This Court provided a compelling reason for why the Hanford 20 cleanup should proceed as planned: “The magnitude of the contamination at 21 Hanford is such that the court cannot allow the cleanup efforts being pursued [at 22 Hanford] to be defeated or diminished by division.” Heart of Amer. Nw., 820 F. 23 Supp. at 1284. While we do not argue here that Plaintiffs’ citizen suits are barred 24 by CERCLA section 113(h)—but reserve the right to do so in the future – this 25 Court’s prior rulings and statements further demonstrate the significant public 26 interest in the prompt completion of the ongoing cleanup. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 56 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 C. 2 3 Granting Plaintiffs’ Requested Relief Would Hamper DOE’s and WRPS’ Ability to Achieve the Safe, Timely Cleanup of Tank Waste at Hanford. If the Court grants Plaintiffs’ requested relief, DOE almost certainly will 4 5 be forced to request a modification of the tank retrieval deadlines in the Consent 6 Decree amended by Judge Peterson in March. WRPS estimates that a schedule 7 delay of up to 24 months would result from mandatory SCBA, in addition to a 8 28 to 36 month delay due to infrastructure changes necessary to effectuate the 9 expanded vapor control zone Plaintiffs seek. Decl. of Amy Basche in Supp. of 10 Def. Wash. River Protection Solution, LLC’s Resp. to Pls.’ Mots. for Prelim. 11 Inj. (“Basche Decl.”) (attached to WRPS’s response to Plaintiffs’ motions for 12 preliminary injunction). 17 Plaintiffs’ proposed establishment of vapor control zones within two 13 14 hundred feet of the tank farm fence lines during waste-disturbing activities – 15 with mandatory use of SCBA, among other requirements, within such zones – 16 would be particularly disruptive. In addition to the significant practical and 17 physical problems this would cause, such as the relocation of buildings, 18 imposing such a requirement over that large geographic area would greatly 19 20 17 21 estimates that it will require hundreds of millions of dollars to implement 22 Plaintiffs’ requests for additional SCBA and expanded vapor control zones, over 23 fiscal years 2017 and 2018. Basche Decl. DOE’s Office of River Protection, 24 which manages the tank farms and the Waste Treatment Plant project, was 25 appropriated about $1.4 billion for fiscal year 2016. 161 Cong. Rec. at H10119. The costs associated with these measures are also significant. WRPS 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 57 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 expand work delays that already would result if the Court were to require SCBA 2 within the tank farm fence lines. Fletcher Decl. ¶ 61. Workers generally move 3 more slowly with SCBA, and the air bottles need to be changed out every 30–60 4 minutes, or perhaps sooner based on individual breathing rates. Watson Decl. ¶ 5 13. SCBA also place a physiological burden on the wearer due to weight and the 6 additional body heat that is generated and retained. Id. Indeed, in high outdoor 7 temperature situations, wearing a SCBA could be a health risk for some workers 8 due to the additional heat load. Id. As a result, work requiring SCBA does not 9 proceed when the temperature gets too high. Urie Decl. ¶ 67. As is the case at 10 many work sites, there is a reasonable likelihood that some workers would not 11 be cleared for SCBA use due to their medical or physical limitations. Watson 12 Decl. ¶ 13. SCBA use also presents a challenge and potential hazard for 13 individuals operating vehicles due to space limitations, and it also increases the 14 likelihood of workplace accidents. Urie Decl. ¶ 64, 66, 68–69; Watson Decl. ¶ 15 13. Indeed, the TVAT Report observed that accident rates increased during the 16 two-year period between 2004 and 2006 when SCBA use was mandatory. See 17 Urie Decl. ¶ 69. Moreover, the TVAT Report cautioned against over-use of 18 SCBA, and did not recommend additional use as Plaintiffs seek here. Watson 19 Decl. ¶ 13; see TVAT Report at 24. 20 Furthermore, as discussed above, industrial hygiene is a technical, data- 21 driven field, but Plaintiffs have not offered a scientific justification for the 22 additional SCBA requirements they seek. Supra at 11–12. Instead, their request 23 appears to be based on the position that an “exposure” event occurred 24 approximately 200 feet from a tank farm perimeter fence line. This is an 25 inappropriate basis for requiring SCBA. As discussed above, the report of an 26 AOP-15 event does not necessarily indicate an exposure (and certainly not an U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 58 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 overexposure) to chemical vapors, and symptoms (if any) reported in connection 2 with such events are not necessarily attributable to such chemicals. In contrast, 3 the previously-existing requirement that workers wear SCBA in vapor control 4 zones—and may choose voluntarily to wear SCBA within the perimeter fence 5 lines—was scientifically derived, based on sampling data and dispersion 6 modeling used to establish the vapor control zones. See Urie Decl. ¶ 55. 18 7 8 9 10 11 12 13 D. The Broader Public Interest in a Safe, Prompt Cleanup at Hanford Outweighs Plaintiffs’ Limited Interests on the Record Here. In narrowly focusing on the interest they ostensibly seek to protect—the health of a small subset of tank farm workers—Plaintiffs ignore the larger public interest served by allowing the Hanford cleanup to continue expeditiously. The important duties performed by tank farm workers help protect the community, 14 18 15 16 17 18 19 20 21 22 23 24 25 26 Furthermore, Hanford Atomic Metal Trades Council (“HAMTC”), the umbrella union organization that includes Plaintiff Local 598, has entered into a Memorandum of Agreement (“MOA”) with WRPS under which SCBA use may end relatively soon. Under that MOA, testing of cartridges—which may be used in air-purifying respirators as an alternative to SCBA—is taking place now and is expected to conclude by the end of October, 2016. After that testing is complete, a third party selected by HAMTC will review the methodology and results. If the third party concurs that cartridges would “provide worker protection from tank farm vapor emissions,” then cartridges would be used in lieu of SCBA, on a tank farm by tank farm basis, until “additional engineered controls or other approaches are implemented and proven to be effective.” The MOA is subject to judgments issued pursuant to federal and state law. U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 59 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 State, and entire Pacific Northwest, from the legacy of environmental damage 2 left by World War II and the Cold War. DOE takes seriously the concerns of 3 workers who have reported symptoms or other effects from tank farm vapors, 4 but DOE (and this Court) also must consider the citizens immediately and 5 broadly surrounding the Site, and the welfare of the environment. A larger 6 public interest can outweigh the interest in preventing a smaller amount of harm, 7 even where that harm is irreparable. F.T.C. v. World Wide Factors, Ltd., 882 8 F.2d 344, 347 (9th Cir.1989) (“when a district court balances the hardships of 9 the public interest against a private interest, the public interest should receive 10 greater weight.”). See also Alliance for the Wild Rockies v. U.S. Forest Serv., 11 2016 WL 3349221, No. 15-0193, at *5–6 (D. Idaho June 14, 2016); Citizens of 12 the Ebey’s Reserve for a Healthy, Safe & Peaceful Env’t v. U.S. Dep’t of the 13 Navy, 122 F. Supp. 3d 1068, 1085 (W.D. Wash. 2015). Here, the significant 14 public interest in the expeditious cleanup at Hanford outweighs the smaller, 15 alleged harm against which Plaintiffs seek to protect. 16 17 E. Denial of Plaintiffs’ Motions Would be Consistent with Congress’s Objectives in Enacting RCRA. 18 Injunctions must be considered in view of the objectives of the relevant 19 statute. See, e.g., Hecht Co. v. Bowles, 321 U.S. 321, 331 (1944); Nat’l Wildlife 20 Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 795-96 (9th Cir. 2005). 21 Here, Plaintiffs request preliminary injunctive relief in the context of RCRA, a 22 statute designed to safely manage the treatment, storage, and disposal of solid 23 and hazardous waste. 42 U.S.C. § 6901. That is exactly what DOE and WRPS 24 are doing at Hanford. Cf. Christie-Spencer Corp. v. Hausman Realty Co., 118 F. 25 Supp. 2d 408, 420 (S.D.N.Y. 2000) (“In most cases brought under the RCRA, 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 60 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 1 plaintiffs want to force site owners and operators to begin a cleanup (or stop 2 dumping and begin a cleanup).”). 3 F. Injunctive Relief Is Not Necessary. 4 The extraordinary equitable relief of a preliminary injunction also is not 5 warranted because the protective measures in place at the tank farms are 6 protective, and are being constantly update and improved. See Price, 39 F.3d at 7 1019 (“[The] endangerment must be substantial or serious, and there must be 8 some necessity for the [injunctive] action.”). The discussion above shows that 9 workers are protected against overexposure to chemical vapors by the controls 10 in place at Hanford. In addition, the number of industrial hygiene staff working 11 at the site, the quality and quantity of industrial hygiene sampling equipment in 12 use at the site, the overall resources applied to evaluating worker exposures, the 13 number of samples collected at the site, and the effort to identify and 14 characterize the chemicals to which workers may be exposed all are exemplary. 15 Watson Decl. ¶ 6–8, 14–16. Indeed, the staffing of health and safety 16 professionals, along with the nature and sophistication of the industrial hygiene 17 instrument inventory, training facilities, and exposure sampling efforts are 18 unprecedented in comparison to what DOE’s Industrial Hygiene Program 19 Representative experienced at any other hazardous waste site or commercial 20 entity during his 36-year career, which includes former employers and clients 21 such as AMOCO, Coors Brewery, Coastal Refinery, Dames and Moore, Ebasco, 22 Freeport Indonesia, Home Stake Mining, IBM, the Los Alamos National 23 Laboratory, NASA, the U.S. Army, and EPA. Urie Decl. ¶ 52. The combination 24 of such factors already makes the industrial hygiene program for the tank farms 25 far exceed those at other facilities. Id. ¶ 52, 84; Watson Decl. ¶¶ 6–8, 14–16. 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 61 Case 4:15-cv-05086-TOR 1 Document 136 Filed 09/23/16 Furthermore, as discussed above, DOE and WRPS continue to move 2 forward with the Implementation Plan and to take additional steps to improve 3 worker protection in the tank farms. The additional steps already taken or 4 underway at Hanford for protection of tank farm workers are extensive and are 5 at the forefront of industrial hygiene practices. Among many other things,, the 6 new technology being installed and tested to provide even more enhanced vapor 7 monitoring and detection are cutting-edge products that are among the most 8 advanced and most expensive available for measuring vapor concentrations. 9 Watson Decl. ¶ 14–16; see also Fletcher Decl. ¶ 54.f. The additional protections 10 Plaintiffs seek are unwarranted and unnecessary and, thus, should be denied. See 11 Smith v. Potter, 187 F. Supp. 2d 93, 98 (S.D.N.Y. 2001) (“Despite the broad 12 scope of the imminent-hazard [RCRA] citizen suit, a court must be cautious 13 when considering the propriety of preliminary injunction relief under this 14 provision.”). CONCLUSION 15 16 17 For the reasons stated above, the United States respectfully requests that the Court deny the motions for preliminary injunction. 18 19 DATED: September 23, 2016 20 Respectfully Submitted, 21 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice 22 23 /s/ Austin D. Saylor AUSTIN D. SAYLOR ELIZABETH B. DAWSON SHEILA BAYNES Environmental Defense Section 24 25 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 62 Case 4:15-cv-05086-TOR Document 136 Filed 09/23/16 P.O. Box 7611 Washington, D.C. 20044 (202) 514-1880 (Saylor) (202) 514-8293 (Dawson) (202) 514-2617 (Baynes) austin.saylor@usdoj.gov elizabeth.dawson@usdoj.gov sheila.baynes@usdoj.gov 1 2 3 4 5 MARK A. NITCZYNSKI U.S. Dept. of Justice/ENRD Environmental Defense Section 999 18th Street; South Terrace; Suite 370 Denver, CO 80202 (303) 844-1498 6 7 8 9 10 VANESSA WALDREF Assistant United States Attorney 920 West Riverside Ave., Suite 300 Spokane, WA 99201 (509) 353-2767 11 12 13 Attorneys for Defendants Ernest J. Moniz and United States Department of Energy 14 15 16 17 18 19 20 21 22 23 24 25 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 63 Case 4:15-cv-05086-TOR 1 2 3 Document 136 Filed 09/23/16 CERTIFICATE OF SERVICE I hereby certify that on September 23, 2016, I electronically filed the foregoing document with the Clerk of the Court using the Court’s CM/ECF system, which sends notice of such filing to all counsel of record. 4 /s/ Austin D. Saylor Austin D. Saylor U.S. Department of Justice 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 U.S. Opposition to Plaintiffs’ Motions for Preliminary Injunction 64