Juggling a Hot Potato Named Nuclear Waste : Hearings on Ward Valley disposal site plan could have national impact on issues of safety and responsibility

California is about to schedule adjudicatory hearings--formal hearings before an administrative law judge--on a major radioactive waste dump proposed for Ward Valley, near Needles. The so-called “low-level radioactive waste” that would be dumped there (byproducts and contaminated gear from nuclear power plants, radiopharmaceutical manufacturing and nuclear medical treatment) remains lethally carcinogenic for periods ranging from months to millennia. Whose responsibility should it be to protect the public from exposure to this hazard? The answer California gives to that question will have national impact.

In 1985 Congress ordered the states to organize into compacts and make provision by Jan. 1, 1993, for the disposal of the nation’s low-level radioactive waste. So far, however, not one compact of states has complied with the 1985 law. New York, with California and several other states, has challenged the constitutionality of the law’s provision that the states literally “take title” to the waste in 1996 if dumps are not open and operating by then. “This is a pretty clever scheme,” Justice Sandra Day O’Connor commented sarcastically on March 30 as opening arguments were heard. “Maybe Congress can require the states to each take over a share of the national debt.”

The 1985 law does permit the state, as dump owner, to charge a dumping fee. And liability, should contamination occur, is to be shared with the contractor operating the dump and the waste producers. But “joint and several liability” means that any plaintiff may sue the state for the lion’s share of damages sought. When unforeseen pollution occurred at a now-closed dump site in Illinois, U.S. Ecology, the same firm that now has the Ward Valley contract, tried to abandon the site. At another now-closed site in Kentucky, USE has attempted to hold the host state responsible for cleanup costs.

Against this disturbing background, Controller Gray Davis in a 50-page analysis and Rep. George Miller (D-Martinez) in heavily researched letters to Gov. Pete Wilson and to Russell Gould, state secretary of health and welfare, have raised grave liability questions that remain unanswered. Partly as a result, the Ward Valley proposal is in steadily growing local trouble. The city councils of Los Angeles and Needles are on record against it. One of Miller’s letters was co-signed by 19 members of the California congressional delegation.

The proposed dump is to consist of a set of unlined trenches into which waste would be placed and then covered with a layer of dirt. Unfortunately, according to evidence presented in a massive technical report last February, these trenches could leak tritium, a major radioactive waste product, into the Colorado River, an irreplaceable water source for Los Angeles and San Diego. Supporters of the dump allege that the high rate of evaporation in this desert site guarantees that no contaminated water could migrate through soil and ground water to the river, 20 miles away. In rebuttal, the report--which was sponsored by the public safety watchdog group Committee to Bridge the Gap and co-authored by the co-discoverer of tritium, nuclear physicist Robert Cornog--notes that the isotope is extremely mobile and that tritium from natural sources has been found as far below Ward Valley as soil sampling has been done (100 feet).

The point is significant because tritium occurs naturally only in the atmosphere. It reaches the surface of the Earth in minute amounts only when cosmic rays strike gases in the upper atmosphere or when there is atmospheric nuclear testing. Given its short half-life of 12.3 years, tritium at 100 feet beneath the Ward Valley site can have arrived only recently, beginning at the surface and working its way down in a matter of years or decades. Huge quantities of dumped tritium could do the same, eventually reaching ground water. Ward Valley, according to the U.S. Geological Survey, is an “open basin” whose ground water “drains to the Colorado River.” And the mobility of short-lived tritium through soil suggests that slower-moving but much longer-lived and more dangerous radionuclides could also, over time, pose a threat to the river.

U.S. Ecology received the lowest, not the highest, rating when it bid for the Ward Valley contract. It won the contract only when, perhaps deterred by liability concerns, all the other bidders dropped out. USE, whose financial health Rep. Miller has called into question, might well choose strategic bankruptcy if faced with massive lawsuits. The nominally co-responsible contractor and waste producers might then claim--as Rockwell International did in a suit over its management of the Rocky Flats weapons facility--that because the government knew the risk but still granted the license, it should be held liable for resulting damages. A detail like tritium migration, now minimized by those who would like the dump opened, could be maximized later, should the fears prove grounded and contamination result. And whatever happens, the state becomes sole custodian of the site when it closes after just 30 years of operation, long before its wastes have ceased to be hazardous.

But if the Ward Valley dump does not open, what then? The waste intended for the dump comes principally (not exclusively) from three sources, and each should be considered separately.

A small amount of nuclear waste results from nuclear medical treatment. Fortunately, this form of waste decays quite rapidly; and on-site or other monitored container storage is a realistic option. Stanford University has clearly demonstrated the feasibility of this option by handling all but a tiny fraction of its own nuclear waste on campus. Construction of such facilities elsewhere must be seen as part of the real, free-market cost of nuclear medicine.

A much larger amount of nuclear waste results from the manufacture of products used in nuclear medical research. But there is a clear alternative to dumping for this undeniably important industry. The Lawrence Berkeley Laboratory recovers almost 99% of its waste tritium by recycling. Assemblyman Richard Katz (D-Sylmar) has just introduced legislation to require tritium recycling statewide. Recycling would push costs up initially, then down.

It is the nuclear power industry, with its far more grievous waste problem, that has provided much of the lobbying muscle for the Ward Valley dump. Nuclear power generation produces the largest amount of unrecyclable waste and, equally important, the largest amount of the longest-lived forms of waste. The utilities clearly need waste storage most.

We use the word storage by design, however, and not the word disposal , for the danger that radioactive waste presents is not, in point of fact, disposed of when the waste is put in the ground. The danger is simply stored there while radioactive decay brings about the only ultimately effective disposal. Where this inherently dangerous process should take place is a technical question. Who should be held responsible as it takes place is a legal and fiscal question. The upcoming adjudicatory hearings should address both questions.

Radioactive waste should remain--for the whole of its long, hazardous life--the property and the financial liability of those who have produced it. When Congress put the states in charge of the crucial end-stage of the nuclear energy generation processes and other nuclear processes, it presented them, de facto, with a dilemma: Either subsidize these activities by forcing state taxpayers to share liability for nuclear waste storage or find a way to shift that liability back into the internal accounting of the producers themselves. The latter course is the only appropriate one in a free market. The state should be regulator, not co-proprietor, in the waste disposal business.