Alan D. Pasternak, Ph.D.
Technical Director
California Radioactive Materials Management Forum
Post Office Box 1638
Lafayette, California 94549-1638
ABSTRACT
It is now over three years since September, 1993 when the California Department of Health Services, Californias Agreement State Agency, certified the Environmental Impact Report (EIR) for the proposed Ward Valley low-level radioactive waste (LLRW) disposal project and issued a license to US Ecology, Inc. to construct and operate the Southwestern Compacts first regional disposal facility. But there is still no project.
It is over a year since January, 1996 when Californias courts completed judicial review and upheld the Departments regulatory decisions to issue the Ward Valley license and to certify the EIR. But still no project. The last major administrative action required before the Ward Valley project can move from proposal to reality is a sale of federal lands to the State of California for use as the site of the Southwestern Compacts first regional disposal facility. But since taking office in January, 1993, the Clinton Administration has refused to complete the Ward Valley land sale. The Administration and the U.S. Department of the Interior have offered a series of excuses for not completing the land sale and have called for one study after another.
A mix of science and politics affects Ward Valley decisionmaking, especially decisions related to the land sale. A favorable National Academy of Sciences review, completed in May, 1995, has not been sufficient to persuade the Administration to proceed with the land sale. In February 1996, Interior called for another years delay, more tests at Ward Valley, and a second Supplemental Environmental Impact Statement (SEIS). The so-called "Garamendi Exercise" (after Deputy Interior Secretary John Garamendi who has been DOIs spokesman on Ward Valley for the past year-and-a-half) has no basis in science, lacking even the support of Interiors own U.S. Geological Survey, and gaining only the grudging cooperation of the U.S. Department of Energy. This latest study is, at best, a delaying tactic to postpone a decision and, at worst, an effort "to study the project to death," in the words of the San Jose Mercury News.
On January 31, 1997, California Governor Pete Wilson, saying his "...patience with these tactics of delay is now exhausted,..." announced the filing of a lawsuit in federal court by the California Department of Health Services seeking to compel the Ward Valley land transfer. The Governor also announced that the state will proceed with confirmatory testing as recommended by the National Academy of Sciences report. (The NAS had recommended additional tests during construction and operation of the disposal facility, but Interior has demanded the tests be done before the land sale.)
LICENSING BY THE STATE OF CALIFORNIA
In September 1993, the California Department of Health Services (DHS) certified the Environmental Impact Report (EIR) and issued a license to US Ecology, Inc. to construct and operate a low-level radioactive waste (LLRW) disposal facility at Ward Valley, a remote site in the Mojave Desert. (California is an Agreement State under Section 274 of the Atomic Energy Act and has conducted a successful radiological health and safety program since the early 1960s.) The license decision followed four years of regulatory review of the license application filed by US Ecology, Inc. in the fall of 1989, preparation of draft and final Joint Environmental Impact Reports/Statements by the Department and the U.S. Bureau of Land Management (BLM), and numerous hearings including informational hearings, hearings on both the draft and final EIR/S, and hearings on the draft license in the summer of 1991. The Department of Health Services also convened two ad hoc committees of experts. One was to develop a mitigation plan for the desert tortoise, listed as a threatened species, and a second to assist the department and the license applicant in the design of the disposal units and the vadose monitoring system. Californias siting process was praised for its openness by the League of Women Voters Southern California Task Force.
Californias siting process for a LLRW disposal facility was established by bipartisan, urgency legislation enacted by the Legislature and signed into law by Governor George Deukmejian in 1983. Senate Bill 342 (Chapter 1177, statutes of 1983) was authored by State Senator Alfred E. Alquist (D-San Jose) and Assemblywoman Marian Bergeson (R-Newport Beach). The law calls for selection, by the Department of Health Services, of a "license designee" to prepare a license application and develop and operate a disposal facility pursuant to the Departments regulations. The law directed the Department to adopt regulations consistent with the regulations at Title 10 Part 61 of the Code of Federal Regulations adopted by the U.S. Nuclear Regulatory Commission (NRC) in 1982. (Cal Rad Forum, an association of organizations that use radioactive materials, sponsored the state legislation.) The Department adopted the NRC regulations by reference. California is the only state where development is financed by a private facility developer/operator. Only in the instance where no private developer is available to undertake the job would facility development become the responsibility of a state agency -- the California Resources Agency. Californias process and its faithful implementation have produced the only new license issued to date pursuant to the Low-Level Radioactive Waste Policy Act.
Judicial Review Completed, License Upheld
Subsequent to the Department of Health Services issuance of a license, Ward Valley opponents sued the Department and US Ecology in state court to overturn the license and certification of the EIR. Cal Rad Forum was granted status as an intervenor in the proceedings. In July 1994, the trial court (Los Angeles County Superior Court) dismissed all of the complaints except one. The court ordered the Department to undertake a review of the so-called "Wilshire report," a critical report on the Ward Valley site written by three geologists who were employees of the U.S. Geological Survey (USGS) but wrote the report as private citizens. The Department had already prepared a review of the "Wilshire Report" and rejected its conclusions. But the trial court, citing "the spin of the Wilshire Report," ordered a new review by the Department in a "pre-decisional" mode. This ruling was made in spite of the fact that the Wilshire report appeared over two years after the close of the public comment record and three months after the lawsuit on the license was filed! The trial courts ruling was successfully appealed by DHS, US Ecology, and Cal Rad to the Second District Court of Appeals. The Appellate Court dismissed all opponents charges as "without merit" and reinstated the license. On January 18, 1996, the California Supreme Court denied opponents final appeal sustaining the appellate court decision which upheld the Ward Valley license.
WARD VALLEY LAND SALE FROM THE FEDERAL GOVERNMENT TO THE STATE OF CALIFORNIA
In July 1992, California applied to the U.S Bureau of Land Management to purchase 1,000 acres of federal land at Ward Valley for use as the site of the Southwestern Low-Level Radioactive Waste Disposal Compacts regional LLRW disposal facility. (The state must acquire the land before construction of the facility can begin.) The land sale was approved by former Interior Secretary Lujan but rescinded by Secretary Babbitt in early 1993. Over three years later, the land has yet to be conveyed to California.
Promises Made, Promises Broken
Since taking office in January, 1993, the Clinton administration and its Department of the Interior (DOI) have prepared a Supplemental Environmental Impact Statement for Ward Valley and then ignored their own favorable conclusions; asked Governor Wilson to hold a special hearing on environmental issues related to the land transfer and then, after the Governor agreed, abruptly canceled the hearing; promised a decision on the land sale by the end of 1993 then allowed that date to pass without action or comment; commissioned a fifteen-month review by the National Academy of Sciences then ignored the favorable results of the Academys report and distorted its recommendations; and promised a decision on the land sale when Californias judicial review of the license was completed and then reneged on that promise. (And then had the nerve to say that California cannot be trusted!) The Clinton administrations response to the verdict of the California courts upholding the Ward Valley license was to call for more testing, another SEIS, and another years delay all to postpone action until after the November election -- or beyond. Governor Wilson has questioned, based on this record of delays, whether this administration will ever approve the land sale.
The National Academy of Sciences Review of the Ward Valley Site
In March, 1994, Interior Secretary Bruce Babbitt requested the National Academy of Sciences to review the concerns about the Ward Valley site raised by the "Wilshire Report." The National Academys seventeen-member Ward Valley committee's, whose report was published in May, 1995, unanimously put to rest any concern that the disposal project threatens the Colorado River. The committees conclusions were based on "multiple lines of evidence." Because Interior had requested the NAS report, prompt sale of the site to the state was expected. Interior Secretary Bruce Babbitt said, "Ive never felt that being an environmentalist means saying no to necessity. The National Academy of Sciences says its safe, so Im prepared to go ahead with it." (These are the last words we have heard from Secretary Babbitt on the Ward Valley project. Since then, the Deputy Secretary, John Garamendi, has spoken for Interior on the issue.)
Subsequently, Interior tried to impose as binding conditions on the land sale, enforceable in the courts by Interior or third party intervenors (rather than by normal DHS regulatory administration), NAS recommendations and other conditions of Interiors own invention. This end-run around the Atomic Energy Act and the Low-Level Radioactive Waste Policy Act is a blatant attempt to usurp the authority and functions of the NRC and DHS. Governor Wilson objected to Interiors attempt to seize a perpetual regulatory enforcement role for which it has neither legal authority or expertise on a project which is legally a state regulatory responsibility.
In September, 1995, tired of the administrations endless delays, the Governor requested Congress to convey the Ward Valley lands to California. Language was incorporated in the Budget Reconciliation Bill for fiscal year 1996 which was approved by Congress that December, but the bill was vetoed by the President. In his veto message, the President, ignoring the extensive regulatory scheme including state and federal regulations and state license conditions, commented that the provision transferring the federal lands in Ward Valley would have been "without public safeguards." Representatives of the Administration continued to make this charge about Ward Valleyland transfer legislation right up to the end of the 104th Congress.
Developments in 1996: Interiors Attempts to Reverse Science
On February 14, 1996, Deputy Interior Secretary Garamendi suddenly announced a one-year delay while Interior prepares a new SEIS and the Department of Energy (DOE) and the Lawrence Livermore National Laboratory (LLNL) carry-out further tests at the Ward Valley site. As its weak excuse for another delay, Interior pointed to measurements by the USGS of slightly elevated levels of tritium and carbon-14 in the soil at Beatty, Nevada, site of a closed LLRW disposal facility, two-hundred miles from Ward Valley. Beatty is in another regulatory jurisdiction and operated in an earlier regulatory era. Scientific support for this latest delay is lacking even within the Interior Department. Gordon Eaton, Director of the USGS, commented: "...extrapolations of the results from Beatty to Ward Valley are too tenuous to have much scientific value." Both the USGS and the California Department of Health Services have published reports concluding that the migration of radionuclides at Beatty is due to the disposal, years ago, of large volumes of liquid wastes. Disposal of liquids is not permitted by NRC regulations (10 CFR 61) or by state regulations and will not be allowed at Ward Valley.
In December, 1995, DOE Secretary Hazel OLeary, in a letter responding to a request from Senator Barbara Boxer that DOE and LLNL undertake studies at Ward Valley, took the position that her agency could undertake such work only in response to a request from the State of California which has regulatory authority for LLRW disposal in California. "We believe the State of California, in its licensing role as authorized by the Nuclear Regulatory Commission, should determine how to implement the National Academy of Sciences recommendation." The request from Senator Boxer for more studies was viewed by Ward Valley supporters as nothing more than a means to delay the project. Similarly, commenting on the Interior Departments February, 1996 demand for more studies, the San Jose Mercury, News editorialized, "The federal government is obstructing years of careful planning by the state and is perpetuating a huge waste of public funds. It is perpetuating scientific ignorance in a cynical effort to study the Ward Valley dump to death."
Interior Deputy Secretary Garamendi disparaged the OLeary letter to Senator Boxer as "ancient history." Clearly, DOE was troubled by, and, for a time resisted, Interiors disruptive demand of February 14, 1996. But it is also clear that DOE was under tremendous pressure to play the role scripted for it by the White House in the ongoing delay scenario. Eventually, DOE agreed to participate in the tests saying that Secretary OLearys earlier statement deferring to the State of California was applicable under the Low-Level Waste Policy Amendments Act but that DOE can provide a different answer under the "work for others" provision of the Atomic Energy Act!
In June, 1996, Energy Secretary OLeary publicly chided the Interior Department for "inappropriately" volunteering the Department of Energy and reiterated her view that without a request from the State of California, DOE could not perform Interiors tests.
As of December, 1996, the Interior Department had made little progress toward completing the studies it demanded nine months ago. DOE has said that neither it nor LLNL will interpret the laboratory analysis data that LLNL generates! The Director of the U.S. Geological Survey has said that the results of the tests requested by Mr. Garamendi are likely to be inconclusive, and USGS has bowed out of the Garamendi process. In a memo to the Bureau of Land Management last May, USGS said it would not write the new SEIS nor play a major role in new field tests. Clearly, USGS does not want to be associated with the politically motivated Garamendi exercise. Interior has never said who will collect the samples of soil gas for analysis by LLNL nor who will interpret the LLNL measurements.
To help develop the test protocols and advise Interior, Deputy Secretary Garamendi has selected two members of the Ward Valley panel. One has criticized Californias Agreement State program in a letter to Interior Secretary Babbitt, a position directly opposite to that of U.S. Nuclear Regulatory Commission (NRC) Chairman Shirley Jackson. To "balance off" the first individual, Mr. Garamendi has selected one of the two dissenting members of the NAS panel, a man who was nominated to the panel by Ward Valley opponents! Some balance!
Freedom of Information Act requests directed to the Department of the Interior reveal that 1) Interior has not sought the advice of the NRC on any matters relating to the Ward Valley land transfer despite the fact that NRC is the federal agency which regulates radiological health and safety, and 2) The Deputy Secretarys office keeps a Ward Valley opponents list to which Mr. Garamendi sends letters with anti-Ward Valley material.
These and other activities of the Deputy Secretary indicate that his office is not being used in an objective manner appropriate to a government agency but as the Washington, DC base for Ward Valley opposition.
On December 11, 1996, the Interior Department released a Request For Proposal (RFP) for a private firm to prepare a Ward Valley Supplemental Environmental Impact Report (SEIS). The work statement in the RFP reflects Interiors desire to rehash all the old issues already covered and resolved in US Ecologys license application, in the joint EIR/EIS issued in 1991, in Interiors SEIS issued in 1993, and in the NAS study of 1995. Furthermore, the work statement, by its reference to "unlined trenches" indicates Interior wants its contractor to second-guess NRC regulations on design of disposal units! The RFP anticipates about a years time to prepare the SEIS thus stretching the one-year delay announced in February, 1996 to two or more years.
Bipartisan Criticism of the Clinton Administrations Handling of the Ward Valley Land Transfer
Criticism directed at the Clinton administrations handling of the Ward Valley land sale has been bipartisan. Republican Senator Frank Murkowski, Chairman of the Senate Energy and Natural Resources Committee says "The bottom line is whether or not the federal government will allow the LLRW Policy Act to be carried out as intended by Congress or whether it will frustrate the process."
In 1994, Democratic chairmen of Congressional committees and subcommittees -- Senator J. Bennett Johnston, then Chairman of the Senate Energy Committee, and Congressmen Philip Sharp, Richard Lehman, and John Dingell -- were just as critical as Republicans are today. In a letter to the President dated May 2, 1994, Mr. Dingell, Chairman of the House Energy and Commerce Committee wrote, "I have found the actions of the Administration, with respect to the California siting process, troubling. The purpose in establishing the current system was to avoid the intrusion of the federal government in the siting process."
Bipartisan Legislation to Convey Ward Valley Lands to California Can Assist Both California and the Nation
The fate of Ward Valley has an importance beyond California and the Southwestern Compact. Viability of the Low-Level Radioactive Waste Policy Act is at stake. For organizations that use radioactive materials -- medical centers, universities, electric utilities, industries, and research institutions -- what is at stake is their ability to continue to provide to society the benefits of their services and products. In the 104th Session of Congress, to end the delays and further the purposes of the Act, Senators Murkowski and Johnston introduced S. 1596 to convey federal land in Ward Valley to the State of California. Congressman Brian Bilbray (R-San Diego) and a group of cosponsors introduced a companion bill in the House, H.R. 3083. The proposed legislation would have required California to commit to "carry out environmental monitoring and protection measures based on recommendations of the National Academy of Sciences subject to federal oversight by the Nuclear Regulatory Commission." Cal Rad supported these bills as a reasonable response to the administrations professed concerns. We believed that this legislation could have accomplished the land conveyance without additional delay and would have restricted litigation in the federal courts where opponents would like to retry the same issues they lost in Californias state courts.
In the closing days of the 104th Session of Congress, a modification to S. 1596 was proposed by several California biotech organizations whereby the Department of the Interior would have been required to forward to the U.S. Nuclear Regulatory Commission (NRC) any remaining concerns it might have about the safety of the Ward Valley site. NRC would have had until March 1st to determine whether the land would be conveyed to the State with or without additional conditions. In either case, the Ward Valley site would have been conveyed by act of law. Unfortunately, the session ended without further legislative action on the Ward Valley land transfer.
DEVELOPMENTS TO DATE IN 1997
On January 31, 1997, California Governor Pete Wilson announced the filing of a lawsuit in federal court in Washington, DC by the Department of Health Services to compel the land transfer from Interior to the State of California. Governor Wilson also announced that the State would proceed with additional tests at the Ward Valley site. The previous day, in a letter to Interior Secretary Bruce Babbitt, the Governor wrote:
"I fully anticipate that the court will direct compliance with the law and order issuance of patent. In the meantime, it is clear your Department cannot be relied on to objectively conduct site testing. Even if it had the resources, your Department has been inconclusive on the nature of testing, publicly misrepresented its significance, and permitted almost an entire year to elapse while accomplishing nothing.
"In light of this lack of progress by your Department, my previous commitment to comply with the recommendations of the NAS, and my belief that courts and Congress will agree that the transfer should no longer be delayed, I have also given instructions to DHS to proceed immediately with the NAS confirmatory testing. DHS is to arrange and conduct, with cooperation of the States licensee and with oversight by a panel of outside scientists, the confirmatory testing suggested by the NAS and such other tests as DHS believes are necessary to resolve the public concerns which the actions of your Department have helped to create.
"Once the test results are available, DHS will also be prepared to take such additional steps as are required by the California Environmental Quality Act but based upon actual data rather than purely speculative bases behind Deputy Secretary Garamendis current SEIS exercise. DHS will be contacting the Bureau of Land Management (BLM) to secure any permits which may be necessary in order for testing to proceed. I respectfully request your assistance to ensure the BLM does not delay issuance of any necessary permits so that testing will not be further delayed by your Department."
The NAS report had recommended additional tests during construction and operation of the disposal facility. However, Interior has demanded that tests be done prior to the transfer of the Ward Valley lands to the State of California.
PERSPECTIVES ON GOVERNMENT DECISIONMAKING IN AREAS OF CONTROVERSY. THE IMPORTANCE OF POLITICAL WILL
Nowhere have attempts to implement the Low-Level Radioactive Waste Policy Act been without controversy. Implementation will therefore take political will. The State of California has demonstrated the necessary political will, but, to date, the federal Government has not.
In his State of the Union Address delivered on February 4, 1997, President Clinton said:
"We face no imminent threat, but we do have an enemy: the enemy of our time is inaction."
Why is inaction "the enemy of our time" and political will so rare? In 1989, Senator Al Gore (now Vice President Gore) wrote:
"Even now, there are those who look for every possible excuse not to act, clinging to the frail human hope that perhaps these problems will somehow go away. Some want to keep waiting for more evidence, for an even clearer picture of the dire consequences we face. Others seem to think it would be easier to adapt to a crisis than prevent it..."
When he wrote these comments in 1989, Senator Gore had in mind global warming, not radioactive waste disposal. His comments appear in the Foreword to "Ozone Crisis" by Sharon L. Roan. (John Wiley & Sons, Inc.)