In 1980 the U.S. Congress enacted legislation that transferred responsibility to individual states for the storage of low-level radioactive waste (LLRW). In 1982 and 1983, the state of California enacted emergency legislation empowering the Department of Health Services (DHS) to set up regulations governing LLRW disposal; levy fees on producers, pursue reduction of low level radioactive waste; establish dump site criteria, and select a license designee.
Several companies initially applied to operate California's radioactive waste dump. Department of Health Services first selected Westinghouse, which declined after considering the potential liability burden. Chem-Nuclear, operator of the Barnwell facility in South Carolina, was selected and also declined. Every other applicant, except one, withdrew eventually. In 1985 U.S. Ecology (USE) posted a $l million performance bond and was selected by DHS as license designee.
In 1986 USE began its site selection process, based on the preliminary selections prepared by DHS. USE enlisted the assistance of the League of Women Voters to coordinate Citizen Action Committees in the three counties (San Bernardino, Riverside and Inyo) where the 18 preliminary possibilities were located. Ward Valley in San Bernardino County was selected as the primary candidate for the dump in March 1988, with Silurian Valley as an alternate site.
By the end of 1987, California had joined the Southwest Compact with Arizona, North Dakota and South Dakota. Because it had already begun the process of siting its own LLRW facility, California was designated the host state for the wastes generated within the compact.
In December of 1989, U.S. Ecology completed its license application to construct and operate a low level radioactive waste dump at Ward Valley. During 1990, DHS conducted a series of interrogatories to clarify aspects of the application. The final application was completed in December of that year.
Because the Ward Valley site is located on federal land under the control of the Bureau of Land Management (BLM) and because the National Low Level Radioactive Waste Policy Act of 1980 and amendments of 1985 required radioactive waste dumps to be sited on state land, arrangements had to be made to transfer ownership of the Ward Valley site to the state of California. In late 1989 and early 1990, DHS, the State Lands Commission (SLC) and BLM conducted appraisals of the land and reached a preliminary agreement to complete the transfer via SLC.
Also, because the site is on federal land, both an Environmental Impact Report (state) and Environmental Impact Statement (federal) are required to proceed with the project. In June of 199G, the lead agencies-DHS and BLM-released the Draft EIR/S.
The entire process of siting a radioactive waste dump at Ward Valley has been characterized by limited public access and participation. Prior to the notice in the Federal Register announcing publication of the DEIR/S and request for comment, virtually no news of the proposed dump had reached anyone outside of the Needles area. Public hearings on the DEIR/S were limited as well to this area; at least one of three held was inaccurately noticed regarding time and location.
Though a radioactive waste dump is arguably an issue of concern to the entire state, the siting process was addressed as a local concern. It did not actively include citizens other than those near possible dump sites. With the exception of the Sierra Club, no environmental organizations capable of examining technical questions, environmental impacts, nor any other of the serious ramifications such a dump would have on the site or the state was involved. The other participants in this process were U.S. Ecology, nuclear industry representatives and consultants contracted by U.S. Ecology. As a result the siting process was hardly more than a local public relations exercise, which succeeded in locating a site with a low water table, near a major federal highway and a small population center.
Likewise, public hearings on the license application were restricted to San Bernardino County. The license application itself was available for public review in just a half dozen locations in San Bernardino and Riverside counties, the U.S. Ecology office in Agoura, and DHS offices in Sacramento.
The publication of the DEIR/S and notice in the Federal Register alerted concerned citizens around the state, however. As a result of rapid networking, numerous organizations and individuals prepared comments on the document; intense public pressure resulted in an extension of the comment period. Review of the vast amount of commentary delayed the publication of the Final EIR/S; yet even with the additional time, the lead agencies failed to address the bulk of questions raised in the comments. More public pressure ensued, resulting first in BLM's opening the federal EIS for additional comment, then the state EIR as well. One of the primary concerns raised by commentors on the draft EIR/S was the unavailability of data on which the conclusions contained in the EIR/S were based. These data-including modeling criteria, migration rates, hydrology and geology evaluations, waste stream composition, etc.-are part of the license application and were included in both the draft and final EIR/S by reference only.
DHS issued a Draft Radioactive Materials license to U.S. Ecology in June 1990. In spite of both official and public calls for full adjudicatory hearings on the license, DHS refused and held instead three hearings in three locations in the state on the same evening. With just 30 days notice, concerned groups and individuals scrambled to prepare testimony that, regardless of how carefully researched and prepared, would ultimately be non-binding on DHS's decision to grant the license. Prior to the hearings, DHS distributed a few more copies of the License Application, which was included in full by reference in the draft license, to additional locations in Riverside, San Bernardino and San Francisco. With the exception of the copy at the U.S. Ecology office in Agoura, the document was not available in Los Angeles county, where one of the hearings was held.
U.S. Ecology was not the first choice of the Department of Health Services to construct and operate a radioactive waste dump. Westinghouse was their first choice, but Westinghouse, afraid of the potential liability, refused the selection. The job was offered to two others left in the selection process, but they also withdrew. Only U.S. Ecology was left.
Who is U.S. Ecology? U.S. Ecology is a hazardous and radioactive waste management company owned by American Ecology. U.S. Ecology has a bad history of toxic and radioactive waste management. U.S. Ecology and its parent American Ecology have been the defendants in numerous suits for offsite contamination, mismanagement, negligence, etc. in their operation/management of hazardous waste sites around the country.
U.S. Ecology has operated four radioactive waste sites to date. Two, in Sheffield, Illinois and Maxey Flats, Kentucky, have been shut down because of offsite contamination. The state of Illinois filed suit for recovery of damages in the amount of $97 million. This suit was settled out of court. Maxey Flats has been declared a Superfund site by the EPA. North Carolina, which has so-called "bad-boy" legislation, denied consideration of U.S. Ecology for a license application following investigation of that company's history of waste management.
The two remaining sites operated by U.S. Ecology, Beatty, Nevada, and Richland, Washington, are said to be leaking. The Las Vegas Sun reported in March that there was evidence of offsite contamination in groundwater wells around the Beatty dump. U.S. Ecology representatives have stated that it is their belief that this contamination in Beatty was the result of workers dumping radioactive materials into the wells, and not due to leaks.
Representatives of U.S. Ecology have publicly made erroneous statements, including that none of the waste destined for Ward Valley will have a hazardous life of more than 500 years. Individual radionuclides decay at a particular fixed rate. There is no variance from this formula, regardless of how small the volume is. The waste stream contains isotopes with half lives in the tens of thousands of years; considerably longer than 500.
"Low level" does not mean "low risk." Low level radioactive waste is officially defined as everything that is not high level. This has nothing to do with either level of activity (Curies per unit volume), length of half-life or toxicity. High level wastes are spent fuel rods from nuclear reactors and some transuranics. Once these fuel rods and transuranics, however, are reprocessed into materials necessary for nuclear weapons manufacture the remaining (still) radioactive waste is then classified as "low level."
"Low level" radioactive wastes include medical wastes; wastes from research conducted at universities, wastes from industries as diverse as radiopharmaceuticals, civilian defense contractors, and smoke alarms; and wastes from the generation of nuclear power. Over the thirty-year operating lifetime of the proposed Ward Valley dump, the operating licenses for every commercial nuclear power plant currently online will expire. There are several reactors nationwide already set for decommissioning, including two at Rancho Seco in California. Everything from handtools to pipes to the reactor vessels themselves irradiated by years of neutron bombardment can be classified under current regulations as "low level radioactive waste", and can be disposed of at the proposed Ward Valley dump.
According to the FEIR/S, the vast majority of the waste received at Ward Valley will be relatively short lived medical wastes and very little long-lived reactor wastes. The pie charts provided as illustration include only waste from 1985-87, and do not include reactor decommissioning waste. Instead they show that 79/0 will be medical. This contradicts Department of Energy figures which show that at least 50% of low level radioactive waste is produced by commercial nuclear power reactors. According to the DOE only one half of one percent comes from medical practices.
There has emerged, only very recently, some public discussion of these discrepancies. Dump proponents allege that DOE figures place all research generated waste, including research in radiopharmaceuticals and other medical applications, in the industry category. However, even if the amount of waste attributed to industry by the DOE (approximately 47/0) were added to that agency's figure for medical practice generation (less than one percent), the total would still not equal the figure projected by U.S. Ecology and Department of Health Services.
U.S. Ecology's waste stream projections are based on manifests of radioactive wastes shipped to disposal facilities operated by U.S. Ecology during the years of 1985-87. During this time, however, no utility-owned nuclear power reactors have been decommissioned and dismantled. Yet over the legislatively mandated 30-year operational period of the proposed Ward Valley dump, every one of the 112 currently operating commercial nuclear power reactors in the nation will have reached the end of its projected lifespan.
At present most states or compacts are having trouble meeting the federally mandated milestones for the 1993 deadline. In spite of recent delays, however, California is still almost a year ahead of the mandated timeline; well on its way to having the first radioactive waste dump opened in the country in over a decade.
Though the 1985 Amendments allowed compacts to restrict waste disposed within a compact, the later compact legislation permits compacts to, on a majority vote, accept out-of-compact waste. 14 states and the District of Columbia formally requested permission of the Southwest Compact to bring their radioactive waste to Ward Valley once the dump is opened. Additionally, the 1985 Amendments grant "emergency access" to the Nuclear Regulatory Commission. On petition from a generator, the NRC can allow access to any operating dump.
The Ward Valley site may also be in a dangerous position if federal regulations change. According to a report released in late 1989 by the Office of Technology Assessment, if dumps are established for every compact and non-aligned state, there will be more waste dumps than the nation needs or can probably afford. New compacting technologies alone have dramatically reduced the volume of waste created by 55% since 1980 and another reduction by half again is anticipated by 1993. The report suggested that Congress seriously consider limiting the number of dumps rather than. letting the proposed 17 sites come on line.
The report went on to say that many of the proposed dumps would become uneconomical to run. Rep. Tom Alley of Michigan suggested at the March 21 meeting of the NRC Advisory Committee on Nuclear Waste that states "might look for a state such as California to take the Compact's waste on. a contract basis." In July, John Etheridge of Louisiana Power and Light proposed the establishment of "super compact" facilities, formed by combining existing compacts.
The Ward Valley site is situated 22 miles west of Needles, California on Interstate 40. Located 15 miles from the Colorado River, the site is also directly above an underground basin containing approximately 8.7 million acre-feet of water. The State Water Quality Control Board Region 7, Colorado River Basin, has designated the aquifer "high quality drinking water. " The Region 7 Board, however, determined that since the concern is of discharge below the site and not into surface water, federal Clean Water Act provisions do not apply.
The proposed design calls for open, unlined trenches, into which the waste will be dumped, covered with dirt and revegetated. The FEIR/S concludes that because the surface level of the basin is deep (estimated 600 feet), the region is arid and rainfall will not seep further than six inches, there is no danger of radionuclides migrating from the site into the water below. Because of the inaccessibility of the license Application, which contains the models and data used to reach these conclusions, independent hydrologists have been unable to test the veracity of these conclusions. The FEIR/S also presumes relatively short hazardous lives for the wastes (500 years or less) and states that even if migration were to reach the water, the hazard would by then have expired.
The Ward Valley site is also habitat for the endangered desert tortoise. Mitigation efforts outlined in the FEIR/S for any further danger posed to this species are limited to erecting fencing along the roadway and relocating some of the tortoises to the other side of I-40.
Ward Valley is located on tribal lands of five local Indian tribes, who hold this land sacred. The Chemehueve, Fort Mojave, Quichan, Cocopah and Colorado River Indian Tribes consider both the region and many of the native species of sacred significance. The elders of these tribes have unanymously opposed siting of the Ward Valley dump, and have made visits to Washington, DC to lobby against it. They have vowed to lead an occupation of the land in the event the land is trsansferred to the state and construction threatens to start.
Neither the draft license nor the FEIR/S adequately address the issues of cost or liability. It appears the taxpayers of California will bare the burden of any major mishap after the 30-year contract with USE ends. Neither the generators of the waste nor the operator of the dump will be held liable in the event of offsite environmental contamination, widespread public exposure or contamination of the water below the site.
In any case, the financial state of U.S. Ecology and its parent American Ecology, according to documents submitted as part of the license application and an independent study by the University of Nebraska, is so dismal that if the company were to be held liable for environmental damage, it would probably go bankrupt.
U.S. Ecology, as the operator, is required to have an insurance policy of $10 million, but this is meaningless. John L. Quattrochi of American Nuclear Insurers stated that "coverage cannot be tapped to pay for cleanup if the dump leaked" (L.A. Times, 20 May 1991, "only California Is on Track for Nuclear Dump"). "The kind of insurance available to U.S. Ecology covers only claims for injury or property damage outside the dump, he said, and such claims are so rare and difficult to prove that none has been awarded from low level dumps in the 33 year history of the industry."
Waste generators will pay a fee to the Department of Health Services to cover operational costs and establish a contingency fund should anything go wrong at the site. Unless the law is changed, this fee payment relieves the generator of all future liability. The generators will include the cost of disposal fees in their rate bases.
Because there is no way to determine just what the costs of isolation and cleanup of a leak would be, it is impossible for the DHS to establish a fee structure that would cover all possible costs. Someone else will have to cover the difference. The state of California will own the land and the dump-the taxpayers will own tons of radioactive waste generated by commercial interests. Common law usually dictates that ownership constitutes responsibility, and liability for damages.