Richard F . Paton
Vice President
American Ecology
Corp
James A. Shaffner, P.E.
Manager-Southwestern Compact
Region
US Ecology
ABSTRACT
The Ward Valley Land transfer impasse is a prime example of the dilemma that results when political ideology is substituted for scientific method in a public policy debate. In the face of scientific fact, pleas by knowledgeable scientists and doctors and to the economic detriment of California, the Clinton administration has steadfastly refused to transfer a small parcel of federal land in the Mojave desert to California for a low-level radioactive waste disposal facility. The administration has chosen to listen instead to a small group of Hollywood activists, championed by Senator Barbara Boxer, who refuse to let facts get in the way of their anti-nuclear ideology. In taking this position, the Clinton administration has demonstrated that it is willing to jeopardize the economy of our largest state as well as the health and well being of thousands of people suffering from life threatening diseases - all to mollify the interests of a few well-heeled contributors. In so doing, the administration is thwarting the implementation of a federal law - one which Clinton helped create when he was governor of Arkansas - and doing so at taxpayer expense.
This paper chronicles the efforts, throughout 1996, by the Clinton administration to thwart the land transfer necessary for completion of the Ward Valley project. With the most tenuous of excuses Deputy Interior Secretary John Garamendi called for additional tests and studies following, all the while, the advice of anti-nuclear activists instead of credible government experts. The administrations pattern of continual delay in this process has recently prompted California Governor Pete Wilson to act. The paper concludes with recent initiative on the part of project proponents to reverse delaying tactics by the federal government through legal action.
BACKGROUND
For fifteen years the state of California has been trying to comply with a federal law that requires states to assume responsibility for the low-level radioactive waste generated (LLRW) by their hospitals, research facilities, academic institutions, and industry including electric power generation.
Following meticulous guidelines developed by the U.S. Nuclear Regulatory Commission and in full compliance with both federal and state environmental laws, the California Department of Health Services, California's duly empowered regulatory body, in September 1993 issued a license for a low-level radioactive waste disposal facility in Ward Valley within the state's dry, unpopulated Mojave desert. The Ward Valley project is perceived by California Governor Pete Wilson as a vital part of California's economic infrastructure because, among other things, it will serve as reliable waste disposal capacity for California's burgeoning biotechnology industry. It will also support research related to the cause and cure of life threatening diseases such as cancer and AIDs.
The land that was identified for the project is owned by the federal government. Land transfers from the federal government to a state government occur often, usually expeditiously, when the state has identified a beneficial use. This particular land transfer, however, has become the last stand of the environmental extremists in Hollywood and elsewhere who are opposed to nuclear power. In the view of such activists, any endeavor, no matter how tangential, that is perceived to be supportive of the continuation of the nuclear industry is considered anathema.
In fact, the celebrities who have railed against the Ward Valley project could fill a Who's Who of Hollywood. Ward Valley opposition became a cause celebre for President Clinton's most avid supporters, financially and otherwise. It is no surprise that the Clinton administration has found every excuse imaginable - including disregard of federal laws and disavowal of its own criteria - to thwart land transfer.
Two weeks before Clinton assumed office, then Secretary of the Interior Manuel Lujan, in keeping with Governor Wilson's wishes, announced that Interior intended to transfer the land necessary for the Ward Valley project to California. Accordingly, Lujan issued a record of decision for a land patent, a record which officially stands today. Not surprisingly, project opponents found a federal court in San Francisco to issue a Temporary Restraining Order (TRO) to bind actual transfer over into the new administration.
When it assumed power, the Clinton administration announced that it had to re-evaluate the land transfer issue anew. For several months, incoming Interior Secretary Bruce Babbitt negotiated with Governor Wilson about the specifics of what Babbitt characterized as limited scope hearings to evaluate the propriety of land transfer. In 1990 and 1991, there had already been three rounds of public input during the licensing and environmental review, but, nevertheless, the Wilson Administration negotiated in good faith. Inexplicably, in November 1993, Babbitt retreated from his own hearing process and tied the transfer instead to the outcome of a legal challenge in state court (which had nothing whatsoever to do with the federal decision but rather dealt with facility licensing). Ultimately, the state court decision favored the project, so another excuse for delay was needed. In the spring of 1994, Babbitt asked the National Academy of Sciences (NAS) to evaluate several after-the-fact concerns raised by three individuals working for the U.S. Geological Survey (not the Survey itself which had been heavily involved in the science which had guided the project in its early stages.) Senator Barbara Boxer, California's junior U.S. Senator and Ward Valley opponent, had championed the three individuals, known as the Wilshire Group, in a media extravaganza even though their concerns were speculation with no factual support.
THE NAS AFTERMATH
The NAS committee convened to evaluate the Wilshire Group concerns held information meetings in the summer of 1994 and deliberated throughout the summer and fall. In May 1995, the panel concluded a fifteen-month study of seven technical issues associated with the development of the proposed Ward Valley Low-level Waste Disposal Facility. The NAS panel affirmed the facility safety by including in its conclusions, affirmations that "transfer of contaminants through the unsaturated zone to the water table is highly unlikely" and "While there are conceivable, but unlikely, flowpaths for some groundwater to reach the Colorado River, the potential impacts on river water quality would be insignificant relative to accepted health standards." By all objective standards, this was tantamount to a scientific endorsement of the safety of the Ward Valley facility. The panel did recommend some confirmatory testing which, in its opinion, could be carried out during facility construction and operations.
Accordingly, Secretary Babbitt announced that he was prepared to proceed with the transfer subject to certain commitments from California. That pronouncement in May 1995, was Secretary Babbitt's last public statement on Ward Valley and it was the last time that the Clinton administration showed any inclination to let science have a role in the Ward Valley land transfer process.
In the summer of 1995, the Wilson administration again began good faith negotiations with the Department of the Interior concerning the details of the administrative transfer. Interior insisted on several conditions for transfer including limits on certain types of wastea and assurances that the state would implement all of the recommendations of the National Academy of Science in its final report. Wilson had already publicly announced that California DHS would implement the NAS recommendations during construction and operations. It became clear however, that the word of the Governor was not good enough for the Administration. Interior insisted on a "binding commitment" enforceable in court. In an October 1995 press release, Deputy Interior Secretary John Garamendi used the expression "trust but verify and enforce" in characterizing Interior's perceived role in ensuring California's compliance with the NAS recommendations. This suggests that the Clinton administration viewed its relationship with the Governor of the largest state in the country as though he was the head of state of a hostile foreign power.
The Wilson administration was troubled by what it perceived to be an intrusion on state's rights by the federal government. After all, the California Department of Health Services, not the U.S. Department of Interior, has the technical expertise to make health and safety determinations concerning radiation protection. Also, the state, not the federal government, had the responsibility derived from its Agreement State authority for licensing LLRW facilities. Furthermore, Wilson felt that if any federal oversight of the project required, it should come from the U.S. Nuclear Regulatory Commission, the agency duly empowered under the Atomic Energy Act.
As transfer negotiations dragged into the fall of 1995, it became clear that Interior was intractable on the "binding commitment". The Wilson administration discerned that such a legally binding commitment would allow any party aggrieved by any decision made by regulatory authorities to challenge the decision in federal court. This provision was a serious threat to states rights and would put intolerable restrictions on the ability of state regulators to carry out their duties.
Continually frustrated in the negotiations for administrative transfer, in the fall of 1995, Wilson turned to the U.S. Congress for relief. Wilson asked Congress for federal legislation to mandate the transfer of the Ward Valley site to California. Such legislation was introduced in both houses of Congress as part of the budget reconciliation process since the sale of the land would produce revenue for the federal government. Conforming language was agreed upon for a Budget Reconciliation Bill, it passed by both houses, and was sent to the President. The President vetoed the legislation as part of the "Budget War of 1995". In his veto message, the President specifically mentioned the Ward Valley transfer provision as one of his reasons for veto. Clinton, notwithstanding the findings of the National Academy of Sciences and all of the other data and analysis supporting site safety, claimed that Congress was trying to affect the transfer to circumvent all safety and environmental laws - a statement that is as amazing for its chutzpa as it is for its inaccuracy.
A NEW YEAR - A NEW PLAYER
As the new year dawned, a new player in the Ward Valley drama emerged. Secretary Babbitt had been curiously silent on the Ward Valley issue since late spring. In early 1996, Deputy Interior Secretary John Garamendi became increasingly vocal as the administration standard bearer on the Ward Valley issue. Garamendi had recently been appointed to the position of Deputy Secretary by the President who was grateful for Garamendi's help in the 1992 Presidential campaign. He had previously been California's Insurance Commissioner and an unsuccessful candidate for the 1994 Democratic gubernatorial nomination. In style and demeanor Garamendi proved not unlike Senator Boxer - never allowing facts to stand in the way of ideology. Garamendi proved more interested in politicizing the issue than solving it. In this regard, he quickly seized upon a tenuous excuse that had been raised by project opponents in late 1995 as new information and new cause for delay.
A NEW STUDY - A NEW EXCUSE
In the fall of 1995, routine reporting of research data by the U.S. Geological Survey (USGS) on a long standing project near low-level radioactive waste disposal facility near Beatty, Nevada, gave Ward Valley project opponents a "new issue". In September, USGS reported to US Ecology, the Beatty site operator and licensee for Ward Valley, that small amounts of tritium and carbon 14 had been detected in soil gas throughout the soil profile in the vadose zone near the Beatty facility. The concentrations were well within regulatory limits and of no health and safety significance whatsoever. Furthermore, while the results were interesting from a research perspective, they were not wholly unexpected given the disposal of liquids at the Beatty site two decades earlier. US Ecology immediately reported the USGS findings to regulators in both Nevada and California.
Opponents of Ward Valley have long sought to use half-truths and unrelated events as way to shed doubt about the site's acceptability. Therefore, it is not surprising that, in October 1995, arcane USGS research data normally scrutinized in graduate schools or scientific symposia found their way to the public at large on the front page of the Los Angeles Times, a paper whose editorial board has long been critical of the Ward Valley project. The Times suggested the USGS officials had suppressed the Beatty information for over a year because its existence supposedly was damning to the Ward Valley project. In fact, USGS had done nothing of the sort. USGS experts had collected, analyzed and reported data in accordance with scrupulous scientific protocols that have long been characteristic of that agency. Furthermore, as later confirmed by USGS, the Beatty results were largely explained by operations practices and site specific features that made extrapolation to Ward Valley, in any scientific sense, irrelevant. These facts did not deter project opponents or their political sponsors.
In late 1995, the U.S. Bureau of Land Management (BLM) asked USGS to complete several technical reports on Beatty data interpretation and respond specifically to its relevance to Ward Valley. Meanwhile, the California Department of Health Services undertook its own study of the Beatty data looking at past operations practices, site specific characteristics and various transport mechanisms. Both USGS and DHS concluded that while it was impossible to reconstruct exact transport mechanisms, the observations were more a result of past operations practices and localized preferential pathways than any characteristic that Beatty shared with Ward Valley. In fact, in a letter transmitting two data reports - USGS Director Gordon Eaton - stated "Because of the differences in waste-burial practices at the Beatty site compared to those intended for the Ward Valley site, and the previously mentioned uncertainties about the transport mechanisms at Beatty, extrapolations of the results from Beatty to Ward Valley are too tenuous to have much scientific value."
THE GARAMENDI PLAN
Despite Eaton's disavowal of the relevance of the Beatty data to Ward Valley, the same day, on February 14, 1996, Deputy Secretary Garamendi cited the USGS Beatty data as one of the reasons he was calling for additional field investigations and a supplemental Environmental Impact Statement for the Ward Valley facility. He suggested that the whole process would only add a year of delay. He called for an elaborate confirmatory analysis, supposedly in response to NAS recommendations, to verify the presence or absence of minute amounts of tritium in soil gas beneath Ward Valley.b Garamendi went on to say that DOE's Lawrence Livermore laboratory had the capability and had agreed to do this work. As it turned out, Garamendi had made this announcement without consulting DOE.
Garamendi also stated that an SEIS was required to present the field sampling and analysis results and to evaluate any other "new" issues that may be identified in a series of scoping meetings. Interior itself suggested, in its subsequent scoping announcement, ten new issues - none of which, upon review, was anything of the sort.
One issue was that of environmental justice to Native Americansc. In fact, Native American concerns had been evaluated scrupulously throughout the site selection and original EIS process. Native Americans of many tribes were consulted and, while general concerns about the desert were expressed, no unique cultural features were ascribed to the Ward Valley site. Furthermore, there is no one, Native American or otherwise, living within six miles of the proposed site.
Garamendi's February announcement did two things: 1) it effectively extended a decision on Ward Valley land transfer beyond the November 1996 Presidential election; and 2) it gave project opponents leverage in their efforts to thwart new attempts at land transfer legislation.
The process outlined by Garamendi in February began slowly in the spring. Meetings to define the scope of the supplemental EIS held in Sacramento, San Bernardino and Needles, California were quickly commandeered by anti-nuclear groups and turned into Bully Pulpits for anti-nuclear, anti-Ward Valley rhetoric. Issues that had been raised in the original EIS process in 1990 and 1991, and long ago been addressed, were raised again. BLM was inundated by both oral and written objections to the project by the same individuals and groups offering the same arguments as they had in the original EIS process.
One year later, BLM has yet to establish a scope for the SEIS and selection of a contractor for the SEIS preparation has not been completed.
Nor is Garamendi's proposed field sampling and analysis for tritium any further along. Livermore Lab has subsequently limited its role to sample analysis only, leaving to question who will develop and implement field sampling and sample preservation protocols. USGS the Bureau within Interior with such expertise, has recused itself. Garamendi enlisted two former members of the NAS panel - one a project critic - to develop and implement the sampling protocol. DHS objected to the anti-project bias that such a selection implies. For its part, US Ecology attorneys sent caution letters to the proposed participants reiterating the company's strong objection to the extra procedural nature of the studies and reminding them of the company's obligation to protect its interests and those of its stockholders. These cautionary letters were portrayed by Garamendi as threats against scientific purity when in fact they were reactions to interminable delay.
LEGISLATIVEE FORTS
In early 1996, Congressman Brian Bilbray introduced legislation that sought to assuage concerns raised in regard to earlier legislation. It conditioned land transfer to DHS compliance with NAS recommendations under the auspices of the U.S. Nuclear Regulatory Commission, the federal agency with both the expertise and authority to provide such oversight. However, since the real objective of opponents was to kill the Ward Valley project, not to assure that it be done in a technically sound way, they remained resolute in their opposition. Notwithstanding statements to the contrary by NAS panel members and USGS, President Clinton, Senator Boxer and Deputy Secretary Garamendi continued to characterize legislation as neglectful of federal environmental and safety requirements.
In the face of the lengthy delays implicit in Interior's SEIS process discussed above, California's biotechnology community, in late summer 1996, suggested additional compromise legislation. This too was rebuffed or ignored by administration officials.
WHO'S REALLY CALLING THE SHOTS
Since Garamendi has emerged as the Administration's point man on Ward Valley opposition, he has been making public statements that are both patently false and wholly consistent with previous opposition rhetoric - i.e., most of the waste is nuclear power plant waste, California's medical and technology industries have other options - there is no need for the Ward Valley facility. Garamendi's close ties to opposition groups, particularly Committee to Bridge the Gap (CBG), a Hollywood based anti-nuclear group that has long been the most active and politically effective opponent of Ward Valley, was confirmed in a press release dated July 22, 1996. That release quotes verbatim, including reference sources, waste source percentages from a CBG publication. The CBG's (and hence Interior's) percentages ignore more reliable data from DOE's low-level waste program and rather provide a false impression that the bulk of California's waste comes from nuclear power generation.
A Department of Interior response to a Freedom of Information Act request from US Ecology provides further insight into the impetus for DOI's decision making process. While Interior was able to produce numerous correspondence between itself and CBG, the department admits that there has been none between itself and the U.S. Nuclear Regulatory Commission (the federal agency upon whose expertise one would presume Interior would rely).
In fact, correspondence from Daniel Hirsch, President of CBG to Mr. Garamendi dated February 1, February 8, April 2, and April 23, 1996, suggest a strong correlation between Mr. Hirsch's suggestions and Interior's actions. The California Department of Health Services has documented an uncanny correlation between CBG's directives to Mr. Garamendi and Mr. Garamendi's subsequent actions with regard to his proposed SEIS and testing process. Even more troubling is the presumption by Mr. Hirsch that he speaks for the Administration. In his April 2 letter to Garamendi, Hirsch complains that a senior DOE Department of Energy official is "off message" regarding DOE's role in Ward Valley analysis. It is reasonable to ask how an anti-nuclear activist presumes to tell a senior federal official that another senior federal official is "off message".
Thus, it appears that with regard to Ward Valley, and by extension the entire Low-Level Radioactive Waste Policy Act, the Clinton Administration is ignoring the science expertise and counsel of DHS, U.S. NRC, USGS, U.S. DOE and the National Academy of Sciences and heeding instead the ideologic exhortations of an avowed anti-nuclear activist. One is left to wonder when the focal point of sound scientific policy in the United States went south to Hollywood and Vine.
A SILVERLINING?
In late 1996, Garamendi came to California with his palm extended with two messages - land transfer would not go forward without his prescribed tests and the supplemental EIS and the federal government had no money for the initiatives and expected the state to pay for them. The Wilson administration declined. This gesture did highlight the futility of federal efforts and punctuated the Clinton Administration's willingness to let the issue drag on forever at the expense of California waste generators and U.S. taxpayers.
By early 1997, project proponents, including Governor Wilson, had enough of the administration's obvious and unabashed efforts over the past four years to thwart progress in Ward Valley site development by denying land transfer. Accordingly, they sought remedy through federal court. On January 31, 1997, Governor Wilson announced that DHS had sued Interior for an immediate transfer of the Ward Valley site, citing the Record of Decision rendered by the Secretary of Interior in January 1993. The state contends that Record of Decision gave California an absolute right to the land patent for Ward Valley. The state suit went on to request declaratory relief regarding Interior's abuse of discretion and exceedance of its authority on expertise in technical matters rightly given to the state under the Atomic Energy Act. The suit was filed in the circuit court of the District of Columbia and awaits further action at this writing.
Simultaneously, to refute the notion that proponents were afraid of results of field testing of infiltration, Wilson announced that the state and its contractors would develop protocols and carry out field testing for tritium and chloride necessary to reaffirm site infiltration characteristics. The study will be developed, peer reviewed and implemented by independent experts including former members of the NAS panel which had reviewed the project in 1994-95. These studies are expected to be completed in late spring or early summer 1997.
The Governor was careful to point that the studies, recommended by NAS, would be conducted as part of DHS's regulatory program and not to fulfill Interior's ill-conceived sampling scheme designed by Ward Valley opponents.
Of late, there is another front to this battle against pseudoscience. Senator Frank Murkowski (R-AK) and a number of house and senate members have requested that the General Accounting Office investigate the manner in which Interior has handled the whole land transfer issue. They've requested that GAO scrutinize Interior's consultation and decision-making process as well as the degree to which Interior has adopted the counsel of anti-nuclear groups and refused the counsel of state and federal agencies with legitimate expertise.
CONCLUSION
Nineteen Ninety Six and indeed the entire first four years of the Clinton administration has represented, at least in our industry, a march backward from sound scientific judgement into a world of fear and hysteria projected by ideological opponents of any advance in the use of radioactive materials. There is renewed hope, however, that 1997 will bring a reversal in this trend as the administration is being asked to account for its actions by Congress and in the courts. Under the harsh light of fact and reason, there is hope that science can once again take its proper place in the radioactive waste debate.
a As an interesting sidelight, both the U.S. Nuclear Regulatory Commission and the Congressional Research Service thoroughly debunked opponents' contentions that large amounts of plutonium would be disposed of in Ward Valley.
b In fact, the NAS panel had concluded that observations of minute concentrations of tritium by US Ecology during site characterization were well within the statistical range of zero given the high potential for error introduction in field sampling, sample preservation and laboratory analysis and sought only confirmation during facility construction.
c. Environmental Justice as discussed in an Executive Order requires evaluation of public projects to ascertain their inordinant impact on minorities or low income populations