WARD VALLEY AND "THE ENEMY OF OUR TIME"
Alan Pasternak, Ph.D., Technical Director
California Radioactive Materials Management Forum
Post Office Box 1638
Lafayette, California 94549-1638
Phone: 510/283-5210
ABSTRACT
1997 saw a continuation and expansion of the delaying tactics employed by the Interior Department for five years to block construction and operation of the Ward Valley, California low-level radioactive waste (LLRW) disposal project. Since January 1993, the Clinton Administration has refused to sell 1,000 acres of federal land to the State of California for use as the site of the Southwestern Compact's regional LLRW disposal facility.
Major events in 1997 included lawsuits brought against the federal government and the Department of the Interior by the State of California and its licensed developer/operator, US Ecology, Inc.; Interior's bureaucratic obstruction of attempts by the California Department of Health Services to carry-out additional tests at the Ward Valley site which Interior itself has demanded be conducted; criticism by the U.S. General Accounting Office of Interior's delays and attempts to make judgments about radiological safety while lacking expertise and criteria to do so and neglecting to consult with the U.S. Nuclear Regulatory Commission; criticism of the Deputy Secretary of Interior by members of the U.S. Senate Committee on Energy and Natural Resources at a Committee hearing; criticism of the Deputy Secretary's dissemination of misinformation about Ward Valley and disposal of LLRW by the Chairman of the NRC in a formal letter to Interior Secretary Bruce Babbitt; and a request from a member of the Senate Energy Committee for an Inspector General's investigation of the Interior Department's activities in connection with California's Ward Valley land transfer application. Perhaps the most significant development of the year was the revelation, brought to the Senate floor by Senator Frank Murkowski, Chairman of the Senate Energy Committee, of a memorandum from the Deputy Secretary to the Secretary which is clear evidence of the Interior Department's bad faith in its handling of the Ward Valley land transfer.
INTRODUCTION: BRIEF HISTORY OF THE
PROPOSED WARD VALLEY DISPOSAL PROJECT
In September, 1993, the California Department of Health Services (CDHS) issued a license to US Ecology to construct and operate a low-level radioactive disposal facility pursuant to regulations of the State and the U.S. Nuclear Regulatory Commission.1 The Department's decisions to issue the license and to certify the Environmental Impact Report followed years of site screening, selection, and characterization by the developer; review of the license application by the CDHS; preparation of draft and final joint Environmental Impact Statements/Reports (EIS/EIR) by the CDHS and the U.S. Bureau of Land Management (BLM)2; public hearings on the Department's proposed license and on the draft and final versions of the EIS/EIR; issuance of a favorable biological opinion by the U.S. Fish and Wildlife Service; and preparation of a favorable Supplemental EIS by the BLM. The Department of Health Service's license and certification of the Environmental Impact Report were upheld by California's courts in January, 1996.
In July, 1992, California formally applied to the U.S. Bureau of Land Management to purchase 1,000 acres of federal land at Ward Valley for the site of the Southwestern Compact's regional disposal facility. The transfer was approved by former Interior Secretary Manuel Lujan in January, 1993 but rescinded by the new Secretary, Bruce Babbitt, the same month. Secretary Babbitt ordered the preparation of a Supplemental Environmental Impact Statement. BLM completed a highly favorable SEIS in September, 1993.3 At that point, Secretary Babbitt called for the State to hold one more hearing on environmental issues and declared his intention to reach a decision on the land transfer by December. Two months later, at the urging of California Senator Barbara Boxer, Secretary Babbitt canceled the hearing.
In May, 1995, the proposed Ward Valley site received a favorable report from a committee appointed by the National Academy of Sciences' Board on Radioactive Waste Management.4 The NAS report culminated a fourteen-month review requested by Interior Secretary Babbitt in March, 1994. Following release of the NAS report, Secretary Babbitt said, "I've never felt that being an environmentalist means saying 'no' to necessity. The National Academy says it's safe, so I'm prepared to go ahead with it." 5 Shortly thereafter, the Administration replaced Secretary Babbitt as its Ward Valley pointman with the new Deputy Secretary, John Garamendi. The federal administration continued to offer one excuse after another not to sell to the State 1,000 acres of federal land in Ward Valley in a remote area of the Mojave Desert used for infrastructure (interstate freeway, electric substation and power lines, etc.). On February 14, 1996, Mr. Garamendi announced that Interior would require additional tests and would prepare a Supplemental Environmental Impact Statement (SEIS). His announcement said that it had been five years since preparation of the EIR/EIS, conveniently overlooking the favorable SEIS prepared by BLM in 1993.
MAJOR EVENTS OF 1997 AND TO DATE IN 1998
Lawsuits By the State and US Ecology, Inc. Against
the United States and the Department of the Interior
In January, 1997, the State of California and US Ecology, the State's licensee and project developer, sued the United States in the United States Court of Federal Claims and sued the Department of the Interior in U.S. District Court in Washington, DC. The purpose of the first suit is to recover monetary damages from the government for its delays in transferring Ward Valley lands to the State. In the suit filed in District Court, the State and US Ecology seek a writ of mandamus transferring the Ward Valley lands to the State. Both cases are pending with proceedings in the Court of Federal Claims moving ahead of the mandamus action.
In the contract claim suit, the judge has denied motions by the government to dismiss the suit and to stop discovery. In the mandamus action, the judge has denied the government's motion to transfer venue to the Northern California District Court. He has also recognized the national significance of the case. The Order of the Court of Contract Claims dated September 24, 1997 reveals the scope of discovery6:
"This case cannot be dismissed on the pleadings as defendant suggests. Furthermore, we are not aware of any authority for defendant's assertion that it 'declines to search for and produce documents relating to the Ward Valley Facility which may exist at other federal agencies, including the White House.' The defendant in this action is the United States of America, not a federal agency. We expect full cooperation from all parties so that this case may be resolved promptly in accordance with Rule 1 of this court. If plaintiff wishes to pursue its motion to compel, contact the court for a hearing."
The Court directed both sides to file motions for summary judgment. Oral argument was scheduled for February 3, 1998.
In the District Court action, opening briefs from the plaintiffs were due February 23. A status conference was scheduled for February 27. The government's opposition brief is due March 16 and plaintiffs' reply briefs are due March 23. Oral argument is scheduled for April 24.
Additional Tests at the Ward Valley Site
In its report, the National Academy of Sciences panel recommended that additional tests be performed at the Ward Valley site during construction and operation of the disposal facility. However, Ward Valley opponents and the Department of the Interior have insisted that the tests be completed prior to transfer of the Ward Valley lands to the State of California.
On January 31, 1997, at the same time as he announced the State's lawsuits against the United States and the Interior Department, Governor Wilson also announced that the State would immediately perform the additional tests which the NAS had recommended be carried out during construction and operation but which Interior demanded be done prior to transfer of the land. The Governor asked for Interior's cooperation in clearing the site of demonstrators so the State could undertake the work. Interior responded with the claim that a three-year old amendment to the State's site permit prevented the additional work and demanded the State apply for a new permit. Neither the State nor its licensee had ever seen the permit amendment. The Sacramento office of the BLM admitted that it had no record of transmittal of the amendment and termed the incident an "unfortunate mix-up." 7
Deputy Secretary Garamendi testified to the Senate Energy and Natural Resources Committee in July that the reason Interior had not granted the State access to the site for the additional tests was that the State had not applied for a permit, implying that if the State did so apply, a permit would be granted.8
In September, the State of California applied for a new permit. Interior imposed further delays through preparation of two Environmental Assessments for the testing work at the Ward Valley site. Finally, on January 16, 1998, Interior announced that the federal and state governments would undertake sequential (not simultaneous) testing and that the State would receive a permit to conduct the additional tests only after the Interior Department had completed its own testing.9 This decision was criticized by Governor Wilson10 and Cal Rad Forum.11 Governor Wilson said,
"Today's announcement by Interior is just another in a multi-year series of delays. The Ward Valley site has been one of the most environmentally studied pieces of real estate in California, and our state's efforts to comply with environmental review laws have been upheld in every court where challenged and confirmed by the National Academy of Sciences and the General Accounting Office.
"Interior has neither the expertise nor the responsibility under federal law for this testing. Interior demanded that the state do these studies, and committed to Congress that they would issue timely permits to us to do the work. Once again, Interior is looking for ways to prolong their stated intent in order to wage a public relations campaign against California's efforts to comply with federal law.
"Time and again, we have seen these delay tactics employed for political and public relations ends -- a fact Interior itself has documented. That is why we have sued the Department of the Interior in federal court. It's time for the Clinton Administration to stop playing politics with the health and safety of Californians and allow the Ward Valley project to move forward."
Cal Rad Forum's Chairman, Dr. Bruce Wallace said,
"The permit conditions set out by Interior will ensure additional delays. By requiring that the tests be conducted sequentially, with Interior's testing first, Deputy Secretary John Garamendi has for all practical purposes given California a permit it can't use.
"The permit does not say when Interior will begin its tests, how long it will take to complete them, or when the state will be granted access to the site. It is an open-ended arrangement that, based on past history, leaves project supporters convinced that delay is the intent of the decision.
"Instead of seeking resolution of this long-standing impasse based on good science and the recommendations of the National Academy of Sciences, Mr. Garamendi, by his own admission, had embarked on a public relations campaign to scuttle the project.
"This latest announcement by Interior is just a part of the continuing PR Campaign. It is intended to persuade the public that Interior is acting fairly and in the public interest, when exactly the opposite is true."
Report of the U.S. General Accounting Office and
Hearing by the Senate Committee on Energy and Natural Resources
In July, the Senate Committee on Energy and Natural Resources met to hear the U.S. General Accounting Office present a summary of its report on Ward Valley.12a,b The Committee also heard testimony by Deputy Secretary Garamendi and a representative of the Governor of California, Deputy Cabinet Secretary Michael A. Kahoe.
In a summary of its report, the GAO noted:
"In announcing that it would prepare the new supplement, Interior gave as its reasons an impasse with California over land-transfer conditions and the age of the original environmental impact statement. Interior did not state that its decision to prepare the supplement was based on significant new information that would require it to prepare a supplement to the original environmental impact statement. In fact, much of the new information that has become available is favorable to the proposed disposal facility. Interior's underlying reasons for preparing a second supplement were that it should provide a forum for the resolution of the public's concerns about the facility and independently determine if the site is suitable for containing radioactive wastes. Interior, however, has neither criteria not technical expertise in radiological safety matters to independently determine if the site is suitable for a disposal facility, nor has it sought technical assistance from the Nuclear Regulatory Commission (NRC) or--withone exception--the Department of Energy. California, however has met all of the state's procedural and substantive requirements for licensing the proposed facility. Consequently the state and its licensee have sued Interior to determine, among other things, if Interior has exceeded its authority with respect to radiological safety matters, such as determining the site's suitability."
At the Senate Committee hearing, committee members accused the Interior Department of political bias and of ignoring the advice of its own U.S. Geological Survey. Thus for example, Senator Larry Craig of Idaho:
"When a red herring can be found, a red herring can be pursued..."
That is why the Congress moved 17 years ago to cause the States to move in a timely and responsible fashion. While I understand the auspices and the responsibilities of the Secretary of the Interior to transfer land, I also know that they have the talent by law to create nearly impossible tripwires for the purpose of allowing that to happen and it is my opinion, Mr. Secretary, that you have employed optimum tripwires.
"Now, you can argue it one way and be legitimate in the argument. It is my feeling, having studied it, pored through all of the information, as I tend to do on these issues, that a political bias has been employed. That is disturbing and disappointing in light of one of the most earthquake-prone zones of our country housing some of the heaviest accumulations of this kind of civilian-generated low-level waste and the need to get it to safe storage and to get it there in a timely and responsible fashion.
"I think the Academy of Science in the vast majority argued that and said that we could proceed and should proceed while other tests went on. I understand the top line study, but, you see, I have read the whole study. And when you have a 17-member panel voting in a substantial majority, you can pick a single line and hang your hat on it or you can go with the vast majority of scientists who would argue it differently."
Senator Jon Kyl of Arizona accused the Interior Department of "...in effect vetoing a law that has been on the books for many years..."
On the same point, Chairman Murkowski asked the GAO witness: "What effect on the act would a refusal by the Interior Department to transfer the Ward Valley property have on other States and compacts seeking to implement the act?"
The GAO witness, Ms. Gary Jones, responded (in part): "Because California is the first State to have licensed the construction and operation of a facility, all eyes are turned to California right now as an indicator of whether the current low-level waste policy act will be effective."
Testimony at the Committee hearing strongly indicated that Interior persuaded the Department of Energy to refuse technical assistance to the State of California (contrary to its obligations under the Act) for the additional tests at Ward Valley.
Senator Craig Requests Interior Inspector General Investigate BLM
and Calls for Removal of the Deputy Secretary from Ward Valley Activities
On September 10, 1997, Senator Craig formally requested the Department of Interior's Inspector General to investigate the Department's handling of the Ward Valley land transfer.13 Specifically, Senator Craig questioned whether a sole-source contract from BLM in connection with studies affecting the requested land transfer complies with federal procurement regulations. The Senator's letter to the IG raises questions of bias, BLM's lack of expertise to supervise the work, and improper expenditure of federal funds. The letter is on Cal Rad's web site at <http://www.calradforum.org>.
On February 3, 1998 Senator Craig wrote again to the Inspector General14: "The evidence I now bring to your attention raises serious questions whether Mr. Garamendi ignored the advice of a senior Bureau of Land Management ("BLM") official about misuse of government funds, and whether a special interest group committed to preventing the Ward valley land transfer were inappropriately involved in a related Department procurement. It has also become evident that technically unqualified staff have oversight responsibility for complex scientific studies which the Department and BLM have no business performing in the first place." The evidence cited by Senator Craig is a Record diary maintained by the Deputy State Director of BLM.
Also on February 3, 1998, in a letter to Secretary Babbitt,15 Senator Craig accused Mr. Garamendi of "...a deep seated bias against the state." The senator requested that "...the Deputy Secretary's Office be removed from further involvement in the Ward Valley matter."
CRITICISM OF INTERIOR AND THE INTERIOR DEPUTY
SECRETARY BY THE U.S. NUCLEAR REGULATORY COMMISSION
On July 22, 1997, NRC Chairman Shirley Ann Jackson wrote Secretary Babbitt to complain of misinformation disseminated by Deputy Secretary Garamendi.16 Specifically, Chairman Jackson complains of "several errors" and "statements that may mislead the reader" in a DOI "Fact Sheet" distributed by the Deputy Secretary at a press conference on July 22, 1996. The Chairman notes that Interior's Fact Sheet states that the NRC definition of LLW "...is an unfortunate and misleading catch-all definition..." when in fact NRC's definition is taken from federal law. Even more damning is Chairman Jackson's complaint that information in Interior's Fact Sheet concerning the anticipated California waste stream is erroneously attributed to the NRC, the U.S. Department of Energy, US Ecology, the Southwestern Compact, and the Ward Valley EIS when "the figures in the table are identical to those in a March 1994 Committee to Bridge the Gap report." (Committee to Bridge the Gap is a Ward Valley opponent.) The Chairman's letter and NRC staff comments attached contain additional criticisms of Interior's "Fact Sheet." The letter is on the NRC web site at <http://www.nrc.gov/OPA/reports/babbitt.htm>.
BAD FAITH: THE DEPUTY SECRETARY'S
MEMO AND EVIDENCE UNCOVERED ON DISCOVERY
On October 21, 1997, Senator Frank Murkowski went to the floor of the Senate to reveal a memo from Interior Deputy Secretary Garamendi to Secretary Babbitt. The entire memo, on Department letterhead, reads as follows:
February 21, 1996
MEMORANDUM
TO: Bruce Babbitt
FROM: John Garamendi s/
SUBJECT: Ward Valley:
Attached are the Ward Valley clips. We have taken the high ground. Wilson is the venal toady of special interests (radiation business). I do not think Green Peace will picket you any longer.
I will maintain a heavy PR campaign until the issue is finally won.
Attachments
The Garamendi memo is strong evidence that the Administration has subordinated science and safety to politics and PR.
Senator Murkowski cited another internal Interior Department memo found on discovery in the contract claim lawsuit. Addressed to the Secretary and dated October 12, 1993, the memo reads17:
"...if the Secretary remains the person who alone makes the last decision in this process, I can imagine no scenario that allows us to go forward with the land transfer AND retain credibility with Boxer and the enviros."
Senator Murkowski asked his colleagues:
"But what were Interior's true motivations? Did Interior ever intend to transfer the site under their watch? Was Interior interested in the public health and safety or good PR and political advantage?"
On February 9, 1997, Cal Rad Forum, supporting Senator Craig's request, asked Secretary Babbitt to remove Deputy Secretary Garamendi from all activities related to the Ward Valley land transfer.18 Cal Rad cited the Deputy Secretary's memo of February 21, 1996 as "clear evidence of bad faith," and noted that "the Deputy Secretary has refused to recognize California's statutory regulatory authority and the State's expertise, has not consulted with the U.S. Nuclear Regulatory Commission (NRC), has ignored the advice of the U.S. Geological Survey (USGS) and the National Academy of Sciences, and is attempting to make decisions about Ward Valley site suitability notwithstanding the findings of the U.S. General Accounting Office (GAO) that Interior lacks expertise and criteria in radiological safety." The American College of Nuclear Physicians, the National Association of Cancer Patients, and Organizations United, joined Cal Rad in the request that the Deputy Secretary be removed from involvement in Ward Valley.19
Information revealed in the discovery process indicates a heavy role by U.S. Senator
Barbara Boxer in Interior's deliberations on the Ward Valley land transfer. For example, a
memorandum dated November 22, 1995 from Katie McGinty, Chair of the President's Council on
Environmental Quality (CEQ), to the President says,19
"We have worked tirelessly to try to accommodate Senator Boxer's concerns. She is not completely happy with us because 1) Interior wants to transfer the site; 2) the conditions we have specified are not stringent enough for her; and 3) she thinks we have not consulted with her enough.
"However she is a lot less happy with Pete Wilson and the State of California who are trying to sneak the transfer - without condition - through the budget bill."
A handwritten note at the end of the memo says: "It would be helpful if she would aim her fire at Pete Wilson instead of us!!!"
It should be noted that, contrary to Chairman McGinty's claim, provisions for the Ward Valley land sale, incorporated in the proposed Budget Reconciliation Act of 1995 which was vetoed by President Clinton, would not have affected the implementation at Ward Valley of NRC regulations, the State of California's regulations, or the over thirty conditions in the State's license.
Another CEQ memo, this one dated May 15, 1997 from CEQ Chief of Staff Shelly Fidler to
Karen Skelton, Deputy Assistant to the President for Political Affairs says,20
"Are you in agreement with me that DOI can stop clearing every draft letter with Boxer's office? I really think there's a difference between keeping them informed and having them on every conference call and reviewing every draft. DOI thinks you ordered them to do this and I can't quite believe that."
Memos and e-mail messages uncovered in the discovery process indicate that, based on
the NAS review, Interior and the White House recognized that the Ward Valley project is
safe but were preoccupied with political considerations. These political considerations,
not the findings of the NAS or even Interior's own U.S Geological Survey (USGS),
determined the Administration's actions. For example, a memo dated December 21, 1995 from
Tom Jensen, CEQ Associate Director for Natural Resources, to Wesley Warren, CEQ Deputy
Chief of Staff, says,21
"Interior Department officials, relying on the NAS analysis and recommendations, believe that the site can be operated and used with complete safety. Interior would like very much to move ahead with the transfer and put the Ward Valley conflict behind the Administration. That said, they believe that, as a political matter, the Administration simply cannot of its own volition agree to hand the site over in exchange for a check and an unpopular governor's promise to do the right thing."
Of course, the disparaging reference to "...a promise to do the right thing" ignores the comprehensive federal and state regulations which govern the safe disposal of low-level radioactive waste.
The memo of November 22, 1995 from CEQ Chairman Katie McGinty to the President, cited above, notes that the NAS study "...gave the project essentially a clean bill of health..." Two months later When Mr. Garamendi called for additional studies at Ward Valley and a new SEIS, he cited evidence of tritium migration at the closed LLRW disposal facility at Beatty, Nevada. The McGinty memorandum addresses this issue but cites the NAS report to dismiss it: "The soils are similar, but Beatty was an essentially unregulated waste site and had been rejected by theNAS as a good case study previously." At the Senate hearing on July 22, 1997, Mr. Garamendi tried to convince committee members that the NAS did not know about tritium migration at Beatty! He was refuted by Senator Kyl who simply read into the record of the hearing portions of the NAS report.
There is further evidence of the subordination of science to politics by Interior. In her memo to the President, Chairman McGinty says, "However, John Garamendi told Senator Boxer last week that Interior will not transfer the land willingly at this point until the USGS has told Interior if the Beatty experience poses any risks at Ward valley. She was very pleased with this development." As it would turn out, however, the advice of the USGS would later be ignored. A letter from USGS Director Gordon P. Eaton to California State Director of the BLM Ed Hastey dated February 14, 1996 advised that "...the observed tritium distribution at Beatty is probably the result of the burial of liquid wastes and the fact that some disposal trenches at Beatty were open for years until filled, allowing accumulation and infiltration of precipitation." The Eaton letter goes on to say, "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." In calling for further delay (also on February 14th), Deputy Secretary Garamendi rejected science and made his own political extrapolation offering the Beatty experience as his excuse.
CONCLUSION: "THE ENEMY OF OUR TIME IS INACTION"
In his State of the Union Message to Congress 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." For those who support implementation of the Low-Level Radioactive Waste Policy Act and construction of the Southwestern Compact's regional LLRW disposal facility proposed for Ward Valley, California, it seems that "the enemy of our time" invaded Washington, DC five years ago and occupied the headquarters of the Department of the Interior and the Council on Environmental Quality.
Some have sought to criticize the Low-Level Radioactive Waste Policy Act because no new disposal facilities have come on line since its enactment in 1980. A better plan, however has not been proposed. California's experience in its attempt to respond to the mandates of the Act is ample demonstration that faithful implementation of the law is as important as sound policy incorporated in the law.
As noted by the U.S. General Accounting Office, "All eyes are turned to California." The national plan for safe disposal of LLRW based on regional compacts was developed and fostered by two environmentalists from Arizona: former Congressman Morris Udall and former Governor Bruce Babbitt. Notwithstanding Mr. Babbitt's present key role as Secretary of the Interior, fulfillment of the national plan is now in the hands of the Congress and the federal Courts as they consider the proposed Ward Valley disposal project.
REFERENCES