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By letter dated January 14, Chem-Nuclear Systems,L.L.C. informed its customers that it is delayingimplementation of the company’s long-term initiativefor ensuring extended access to the low-level radioac-t i ve waste disposal facility in Ba r n well, So u t hC a rolina. Chem-Nuclear explained the schedulechange as follows:

[I]t has become clear that many customers willrequire additional time to respond in a definitivemanner to the initiative because of the signifi-cant financial commitment that would berequired. Also, our discussions with members ofthe South Carolina General Assembly have indi-cated that they would like to have additionaltime to carefully study the proposed initiativeand any related legislation.

L LW Forum c/o Afton Associates, Inc. • 403 East Capitol Street • Washington, D.C. 20003

Chem-Nuclear PostponesLong-Term Plan for Barnwell

Operator Seeks to Avoid Short-Term Shortfall

In This Issue

DOI Approves Ward Valley Permit Application • Page 6

Project Evidentiary Hearings Begin in Texas • Page 8

Summary Judgment Motions in California Breach ofContract Action • 9

LLWn ot e sVolume 13, Number 1 February 1998

Barnwell County

othereducation higher

education grants

higher education grants program . . . . . . . . . . . .28.5%other education assistance . . . . . . . . . . . . . . . . .66.5%Barnwell County . . . . . . . . . . . . . . . . . . . . . . . . .5.0%

Although a revised schedule for the initiative has notbeen formally established, indications are that “com-mitment fees” from those purchasing disposal spacemay be due in late November 1998.

Short-Term EffortsIn the meantime, Chem-Nuclear is working withgenerators to meet South Carolina’s requirements forfunding of the state’s Higher Education ScholarshipGrants program. These grants are funded with a por-tion of the $235-per-cubic-foot surcharge that thestate assesses on waste disposed of at Barnwell. Statelaw mandates that Chem-Nuclear must pay anyshortfall if the surcharges collected fall below pre-scribed levels. (See LLW Notes, August/September1997, p. 7.) In order to avoid a shortfall for FY 1997-98, which ends June 30, Chem-Nuclear must collect$23 million—the equivalent of surcharges on343,400 cubic feet of waste. As of December 31,1997, approximately 239,000 cubic feet of waste werestill needed to meet this goal.

continued on page 3

Allocation of $235 Surcharge

$11.75

$156.275

$66.975

Low-Level Radioactive Waste Forum

LLW NotesVolume 13, Number 1 • February 1998

Editor, Cynthia Norris; Associate Editor, Holmes BrownContributing Writers: Rick Gedden, Todd Lovinger, Cynthia Norris, Laura Scheele, M. A. Shaker

Materials and Publications: Rick GeddenLayout and Design: M. A. Shaker

Low-Level Radioactive Waste Forum

c/o Afton Associates, Inc.

403 East Capitol Street

Washington, DC 20003

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INTERNET h t t p : / / w w w. a f t o n . c o m / l l w f o ru m

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Prepared by Afton Associates, Inc. for the LLW Forum under State of Washington Department of Ecology Contract Number C9700071through a grant from the U.S. Department of Energy.

Table of ContentsStates and Compacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Chem-Nuclear Postpones Long-Term Plan for Barnwell . . . . . . . 1LLW Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2States and Compacts (continued) . . . . . . . . . . . . . . . . . . . . . 3New Forum Participant for South Carolina . . . . . . . . . . . . . . . . 3NC Authority Votes to Begin Shutting Down LLRW Project . . . 4NC Appoints Environmental Lobbyist to State Post . . . . . . . . . . 5DOI Approves Ward Valley Permit Application . . . . . . . . . . . . . 6Project Evidentiary Hearings Begin in Texas . . . . . . . . . . . . . . . . 8NE Governor Supports Re-examination of Compact System . . . . 9LLW Forum Corrects Hayden References . . . . . . . . . . . . . . . . . . 10Excerpts From Hayden Report Highlights . . . . . . . . . . . . . . . . . 11Excerpts from Larson Letter to Hayden . . . . . . . . . . . . . . . . . . . 12Excerpts from California DHS Comments on Hayden Report . . 13State and Compact Calendar of Events . . . . . . . . . . . . . . . . . 14Radbits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Special Feature: Risk Analysis (Rocketdyne Study) . . . . . . . . . 17Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18CBG Seeks to Enjoin California Land Transfer . . . . . . . . . . . . . . .18Summary Judgment Motions in CA Breach of Contract Action . . .19Challenge of PA’s Siting Law Appealed to Higher Cour t . . . . . . . . .22Appellate Court: Army Corps Regs re Wetlands Are Invalid . . . . . .23Supreme Court: Judges Can Bar “Junk Science” . . . . . . . . . . . . . . .24Court Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26International . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29International Nuclear Regulators Association Holds 2nd Meeting . .29New IAEA Director Appointed . . . . . . . . . . . . . . . . . . . . . . . . . . .29Companies Seek NRC License to Import LLRW . . . . . . . . . . . . . .29Special Feature: Environmental Justice . . . . . . . . . . . . . . . . . . .30Appellate Court Finds Private Right of Action Under Title VI . . . .30Interregional Access Agreement for Waste Management . . . . . .32Federal Agencies and Committees . . . . . . . . . . . . . . . . . . . . . 34DOE Rejects Utility Proposal to Cease Payments to HLW Fund . .34Groups Seek Contempt Order Against DOE/Officials . . . . . . . . . .34Gov. of WA and AK Senator re DOE Use of Commercial Facilities 35Acting DOE Assistant Secretary for EM Named . . . . . . . . . . . . . .36DOE Unveils $18 Billion Budget Request for FY 1999 . . . . . . . . .36NRC Holds Prehearing Conference on Goshute Proposal . . . . . . . .37NRC Asks Envirocare to Amend its Employment Policies . . . . . . .38NRC Allows Disposal of Off-Site 11e.(2) at NM Site . . . . . . . . . .40New Materials and Publications . . . . . . . . . . . . . . . . . . . . . . 41

LLW Notes is distributed by Afton Associates, Inc. to Low-Level Radioactive Waste Forum Participants and otherstate and compact officials identified by those Participantsto receive LLW Notes.

Determinations on which federal officials receiveLLW Notes are made by Afton Associates based onLLW Forum Executive Committee guidelines in consulta-tion with key federal officials. Specific distribution limitsfor LLW Notes are established by the ExecutiveCommittee.

To assist in further distribution, all documents includedin LLW Forum mailings are listed in LLW Notes withinformation on how to obtain them.

Recipients may reproduce and distribute LLW Notes asthey see fit, but articles in LLW Notes must be reproducedin their entirety and with full attribution.

The Low-Level Radioactive Waste Forum is an associationof state and compact representatives, appointed by gover-nors and compact commissions, established to facilitatestate and compact implementation of the Low-LevelRadioactive Waste Policy Act of 1980 and the Low-LevelRadioactive Waste Policy Amendments Act of 1985 andto promote the objectives of low-level radioactive wasteregional compacts. The LLW Forum provides an oppor-tunity for state and compact officials to share informationwith one another and to exchange views with officials offederal agencies and other interested parties.

Key to AbbreviationsU.S. Department of Energy DOEU.S. Department of Transportation DOTU.S. Environmental Protection Agency EPAU.S. General Accounting Office GAOU.S. Nuclear Regulatory Commission NRCnaturally-occurring and accelerator- NARM

produced radioactive materialsnaturally-occurring radioactive materials NORMCode of Federal Regulations CFR

States and Compacts continued

LLW Notes February 1998 3

continued from page 1

Prior Short-Term ProposalIn late December 1997 and early January 1998,C h e m - Nuclear contacted selected generators andoffered discounted disposal prices on waste shippedbefore the end of FY 1997-98. In exchange, genera-tors were asked to respond by January 7 with com-mitments to dispose of specific volumes of waste byJune 30. Discounts were contingent upon the compa-ny’s receiving short-term commitments to dispose ofat least 343,400 cubic feet. This initiative has beensupplanted by discussions with generators.

Background: Long-Term PlanIn November 1997, Chem-Nuclear distributed pre-l i m i n a ry documentation for a plan under whichChem-Nuclear would enter into agreements with gen-erators or other entities, including states and com-pacts, to provide disposal capacity at Barnwell for upto 25 years based on a predetermined fee schedule.(See LLW Notes, Winter 1997, p. 1.) Customerswould submit letters committing to purchase a specif-ic amount of capacity, and would subsequently becharged a “commitment fee” ranging from $2.58 to$3.60 per cubic foot. Chem-Nuclear would then seekenactment of state legislation to exempt such cus-tomers from the $235 surcharge.

Instead, the state would receive a trust fund of at least$1,000,000,000 to be created from “disposal allot-ment charges” paid up front by the customers. Afterpassage of such legislation, each customer would paya one-time disposal allotment charge of $200 percubic foot of reserved capacity. Customers would alsomake annual payments to cover Chem-Nuclear’s fixedoperating costs. An additional disposal fee would bedue at the time of service, based on the volume andradioactive characteristics of the waste.

In December 1997, Chem-Nuclear released a “final”version of the documents summarizing the plan.Revisions included

• the imposition of a one-time tax payment to thestate of $2 per cubic foot of reserved capacity;

• a change in the disposal fees to include a charge of$300 per curie for all isotopes, instead of $600 percurie for only long-lived isotopes;

• substitution of the Consumer Price Index for the3.25 percent annual cost escalator pre v i o u s l yincluded in the disposal fees and in the charges tocover Chem-Nuclear’s fixed operating costs; and

• elimination of the minimum purc h a s erequirement.

—CN

New Forum Participant for South Carolina

Douglas Novak has been appointed by So u t hCarolina Governor David Beasley to serve as thestate’s Forum Participant. In this capacity, Novakreplaces Elizabeth Partlow, an attorney now in privatepractice.

Novak currently serves as legal counsel to theGovernor. Among his responsibilities is the oversightof all environmental issues within the state, whichre q u i res extensive dealings with the St a t eDepartment of Health and Environmental Controland with the DOE concerning the Savannah RiverSite.

In addition to this new appointment, Novak repre-sents the Governor on several boards and commis-sions in the environmental arena including the SouthCarolina Low-Level Waste Negotiating Committee,Southern States Energy Board, and the NationalGovernors’ Association.

Novak graduated with a bachelor’s degree from theUniversity of South Carolina and earned his JurisDoctor degree from Tulane University. Before beingnamed legal counsel to the Governor, he served as anAssistant Solicitor in Aiken County, South Carolina.

—RTG

At a meeting on December 19, 1997, the NorthCarolina Low-Level Radioactive Waste ManagementAuthority resolved to “begin the orderly shutdown” ofthe project to develop a regional low-level radioactivewaste disposal facility in Wake County, No rt hCarolina. The Authority’s decision is effective “pend-ing the [Southeast ] Compact’s reversal of its fundingposition or receipt of other instructions from theNorth Carolina Legislature,” which reconvenes inMay 1998.

In a related resolution, the Authority voted to

• complete previously authorized work on facilityd e velopment, including “maintaining a basicproject team through the month of December1997 and completing final revisions to thedocumentation and reports for Decision Point 1”of the Licensing Work Plan;

• “commence and complete the orderly collection ofall outstanding project records and the archiving ofsaid records … so that the records may be easilyretrievable in the event that the project is restarted”;and

• “begin site restoration activities …”

All of the above are to be accomplished by no laterthan February 28, 1998.

Background: Facility FundingOn December 1, 1997, after providing over $78 mil-lion for facility development, the Southeast Low-LevelRadioactive Waste Compact Commission notified theNorth Carolina Authority that the Authority had notmet the commission’s conditions for further funding.(See LLW Notes, Winter 1997, p. 4.) These conditionswe re established in resolutions of August andNovember 1997, which set a deadline of December 1for the Authority to respond to a nonbindingMemorandum of Understanding (MOU) proposedby the commission and a group of utility generators inthe Southeast Compact region. (See L LW No t e s,August/September 1997, pp. 4–5.)


4 LLW Notes February 1998

Southeast Compact/North Carolina

North Carolina Authority Votes to Begin ShuttingDown LLRW Facility Development Project

Since the compact commission discontinued funding,the Authority has used cash reserves to pay for con-sulting work associated with the project shutdown.Funding for the activities of the Authority itself is pro-vided by legislative appropriation, which ends June30, 1998.

Authority’s RationaleIn a letter sent to Southeast Compact CommissionChair Richard Hodes on December 19, 1997, NorthCarolina Authority Chair Warren Corgan identifiedthree reasons for the Authority’s decision to terminatefacility development.

1. The Compact Commission has cut off projectfunds even though the Authority has met its pro-ject targets and is making good technicalprogress. Funding cessation was based upon theAuthority’s failure to obtain alternative fundingagreements or to agree on the MOU by 12/1/97,a date which was unrealistic as the Authority toldthe SECC on numerous occasions and specifi-cally at its November 1997 meeting in Norfolk.The Compact has cut off funding despite thefact that it currently has enough unreservedmoney available to proceed with the LicensingWork Plan beyond what the Authority believes isthe key decision point, where success or failurewill be much more predictable.

2. The generators’ group has refused to committo provide additional project funding as a grant,even though that funding will not be neededuntil mid-1999, at which time development willbe much further along and the generators wouldretain the right to decide not to fund at thattime.

3. Present [Southeast] Compact law makes itvirtually impossible to issue revenue bonds. Forthat reason the Authority agrees that a contractbetween it and the generators is required in orderto get construction funding. The current MOU,however, contains requirements which would



also make it impossible to issue revenue bonds.While the Authority feels that it might be possi-ble to develop an agreement which permitsNorth Carolina to issue bonds and satisfies theneeds of the generators, developing such anagreement will take time and could not havebeen done by 12/1/97.

Compact Maintains NC Responsible forFunding

On January 12, 1998, Southeast Compact ChairHodes sent a brief reply to the Authority, stating inpart as follows:

I share your dismay that an agreement on futurefunding was not reached and I am greatly dis-turbed by the project shutdown. It is the statedposition of the Commission that this constitutesa breach of the compact law by the State ofNorth Carolina, which is obligated to proceedwith the funding and the establishment of thefacility.

However, as I stated in my letter to you onDecember 1, 1997, the Commission remainsdedicated to work with the Authority to developa plan to share the cost for site development inNorth Carolina in order that North Carolina canfulfill its obligations under the law. We will meetat any time with the Authority and other partiesto address the means to resolve the funding issue.

Background: Facility Licensing Chem-Nuclear Systems submitted a license applica-tion for the proposed facility in December 1993, andstate regulators determined the following month thatthe application was administratively complete. Sincethen, the application has undergone intensive techni-cal review. In June 1996, a work plan for the remain-der of the licensing process was jointly developed andapproved by the North Carolina Authority and stateregulators. (See LLW Notes, Winter 1997, p. 5.)

For additional information, contact Ted Buckner of theSoutheast Compact Commission at (919)821-0500 orAndrew James of the North Carolina Authority at(919)733-0682.

—CN

NC Appoints EnvironmentalLobbyist to State PostNorth Carolina Governor Jim Hunt recently appoint-ed Bill Holman as Assistant Secretary for Environ-mental Protection in the North Carolina Departmentof Environment and Natural Resources (DENR),effective January 26, 1998. Holman, a former consul-tant for several conservation organizations includingthe Sierra Club and the Conservation Council ofNo rth Carolina, was recently described in theCharlotte Observer as “North Carolina’s premier envi-ronmental lobbyist.”

As the DENR Assistant Secretary for EnvironmentalProtection, Holman will be responsible for the super-vision of all of the agency’s many regulatory divisions,including the Division of Radiation Protection, whichis the licensing agency for the proposed regional low-l e vel radioactive waste disposal facility in No rt hCarolina. (See related story, this issue.) Approximately1,300 employees work in the regulatory divisions thatHolman supervises.

Holman graduated from No rth Carolina St a t eUniversity in 1978 with a degree in biology.

In a prepared statement regarding his appointment,Holman said:

I’m excited about the opportunity to work tosolve some of North Carolina’s most pressingenvironmental problems. I’ve enjoyed workingwith local governments, business and industryand conservation groups to develop effective,consensus approaches to addressing environmen-tal issues. I plan to continue to work closely withall of these diverse groups to support a healthyenvironment and strong economy.

—RTG

In a January 16 press release, the U.S. Department ofInterior (DOI) announced its approval of a CaliforniaDepartment of Health Services’ (DHS) permit appli-cation to conduct a study of rainfall infiltration at thesite of the planned low-level radioactive waste dispos-al facility at Ward Valley. DOI also announced plansto conduct separate testing for tritium and relatedsubstances at the Ward Valley site and declared thatDHS’ testing can proceed upon completion of DOI’sdrilling activities.

The January 16 announcement noted that DOI’sBureau of Land Management (BLM) “intends to closethe immediate area where tests will take place to allbut authorized or permitted uses as a way to insurepublic safety and the integrity of the drilling.”

California Governor Pete WilsonCriticizes Delay

In a January 16 press release, California Governor PeteWilson criticized DOI’s refusal to allow immediateaccess by California DHS to the Ward Valley site fortesting purposes.

Today’s announcement by Interior is just anoth-er in a multi-year series of delays. The WardValley site has been one of the most environ-mentally studied pieces of real estate inCalifornia, and our state’s efforts to comply withenvironmental review laws have been upheld inevery court where challenged and confirmed bythe National Academy of Sciences the GeneralAccounting Office ...

Once again, Interior is looking for ways to pro-long their stated intent in order to wage a publicrelations campaign against California’s efforts tocomply with federal law ...

It’s time for the Clinton Administration to stopplaying politics with the health and safety ofCalifornians and allow the Ward Valley projectto move forward.



Southwestern Compact/California

DOI Approves Ward Valley Permit ApplicationDelays California DHS’ Access to Ward Valley Site

Background: Ward Valley Testing

DOI has asserted that sampling and analysis of tri-tium and related substances, as recommended by aNational Academy of Sciences (NAS) committee inMay 1995, is a precondition to its approval of DHS’request to transfer the Ward Valley site to the State ofCalifornia.

Although the state has repeatedly emphasized that theNAS committee did not recommend the testing as aprecondition to the land transfer, California GovernorPete Wilson instructed DHS in January 1997 to beginconducting infiltration tests at the Ward Valley site.( See L LW No t e s, Ma rch 1997, pp. 1, 16-20.)However, Ed Hastey, the State Director of BLM’sCalifornia State Office, wrote to Carl Lischeske,Manager of DHS’ Low - L e vel Radioactive Wa s t eManagement Program, in March 1997 claiming thatDHS’ proposed testing is outside the scope of permit-ted work at the site and “may not be carried out untila new permit is issued.” (See LLW Notes, March 1997,p. 14.) The state disputed this interpretation.

In an April 1997 memo to Hastey, Interior DeputySecretary John Garamendi preemptively directed himnot to issue a permit to California DHS for testing atthe Ward Valley site because the Interior Departmentpreferred to conduct joint federal and state testing.(See LLW Notes, Winter 1997, p. 16.) At that time,the state had not yet filed a new permit application.

After several meetings and exchanges of correspon-dence, California officials and DOI officials wereunable to reach agreement on the terms and condi-tions for joint testing. (See LLW Notes, May/June1997, pp. 6-7.) In a September 1997 letter to DeputySecretary Garamendi, George Dunn, Chief of Stafffor California Governor Pete Wilson, stated thatunless agreement was reached shortly on the termsand condition for joint testing, DHS would file a per-mit application with BLM to conduct testing. (SeeLLW Notes, Winter 1997, p. 16.) DHS submitted apermit application on September 5, 1997.



DOI Deputy Secretary GaramendiReiterates Joint Testing RequestIn a January 16 letter to Governor Wilson, DeputySecretary Garamendi advised the Governor of DOI’sapproval of California DHS’ testing upon completionof DOI’s testing activities at the Ward Valley site. Theletter states, in part:

I wish to reiterate my often stated invitation tothe State to participate with Interior as it carriesout its testing program ... We intend to completethe testing and the [Su p p l e m e n t a lEn v i ronmental Impact Statement] process assoon as possible.

Ward Valley Opponents Vow to ProtestIn response to DOI’s announcement of plans to pro-ceed with testing at the Ward Valley site, opponents ofthe planned disposal facility issued a “Call to Action”to engage in “mass, nonviolent sustained dire c taction” to prevent the testing. Press releases denounc-ing the federal testing have been issued by a numberof opponent organizations including the Bay AreaNuclear Waste Alliance, Greenaction, Greenpeace,and the Save Ward Valley Coalition. The ColoradoRiver Native Nations Alliance—which comprises theFort Mojave, Chemehuevi, Cocopah, Quechan and

Colorado River Indian Tribes—has issued statementsasking for protesters to gather at the Ward Valley site“to defend the land from the destruction and desecra-tion resulting from test drilling by the DOI and theState of California.”

BLM to Close Site on February 13

BLM issued a January 29 Federal Register noticeannouncing the temporary closure of the Ward Valleysite. The notice states that “the existing pro t e s tencampment maintained by the Fort Mojave Tribeunder BLM permit CA-37890 shall be relocated” andthat “[n]o activities authorized by the encampmentpermit shall be undertaken outside [the area to whichthe protest encampment will be relocated] on anylands closed pursuant to this notice.” The closurebecomes effective on February 13 and remains effec-tive for six months—until August 13—unless BLMissues an order reopening the site before then.

BLM is responsible for enforcing permit conditionsupon land that it owns. State law enforcement per-sonnel do not have jurisdiction on federal land unlessstate personnel or state-owned equipment are at risk,or the interstate highway is closed due to protest activ-ities.

NRC Criticizes DOI Testing ProtocolsIn November 1997, BLM made available for publiccomment the protocols for DOI’s proposed testing atthe Ward Valley site. In a November 1997 letter to theBLM Needles Field Office, Carl Paperiello, Directorof NRC’s Office of Nuclear Material Safety andSafeguards, conveyed NRC’s comments on DOI’sprotocols. Among other issues, the comments statethat “[DOI’s] testing may not be conclusive whenmeasured against the protocol’s objectives, and maynot be relevant to determining the performance of thefacility in isolating low-level radioactive waste ...” (SeeLLW Notes, Winter 1997, p. 17.) NRC had reviewedthe protocols at the request of Interior De p u t ySecretary Garamendi. At press time, BLM had notissued revised testing protocols.

For further information, contact Carl Lischeske of theCalifornia Department of Health Services at (916)323-3693.

—LAS

NJ Township Drops Talks withSiting Board

A New Jersey township that had been negotiatingwith the New Jersey Low-Level Radioactive WasteDisposal Facility Siting Board decided in lateDecember 1997 not to enter an agreement toconsider whether to host a disposal facility. OnDecember 4, the Siting Board had authorized ana g reement proposed by the Ec o n o m i cDe velopment Commission of Carneys Po i n tTownship under which the board would havereimbursed the community for expenses to con-duct a study of the advantages and disadvantagesof hosting a facility. The township would alsohave received $750,000 in unrestricted funds.However, now that local officials have withdrawntheir support for the project, the township is nolonger being considered as a site.

—CN

On Ja n u a ry 21, the Texas State Office ofAdministrative Hearings conducted the first of severalproject evidentiary hearings to evaluate the TexasLow-Level Radioactive Waste Disposal Authority’sapplication to construct and operate a regional wastedisposal facility in Hudspeth County, Texas. The for-mal administrative hearings, which are being held invarious locations throughout the State of Texas, areexpected to last approximately eight weeks.

Parties and ProcedureThe hearing process being used for evaluation of theauthority’s application is the most comprehensive andformal of the public participation procedures offeredunder Texas law. All members of the public have anopportunity to participate in the administrative hear-ings process—as a party, as a witnesses, or throughpublic comment. In addition, any member of thepublic may provide written comments, whether ornot he or she qualifies for party status.

Parties to the hearing were named in a proceduralorder issued by two administrative law judges fromthe State Office of Ad m i n i s t r a t i ve Hearings onOctober 31, 1996. Most requests by individuals andentities to participate in the process were granted, buta few were denied. Twenty-five different individualsand entities are currently named as parties. These par-ties represent a wide range of interests, including facil-ity supporters, individual opponents, U.S. andMexican local governmental entities, and both U.S.and Mexican environmental and/or antinuclear orga-nizations. Nineteen of the 25 parties named opposethe facility. (See LLW Notes, December 1996, pp. 1,3–5.)

The hearings are presided over by two administrativelaw judges and conducted in a manner similar to civiltrials in state district court. Parties have the right topresent testimony, obtain evidence through a formaldiscovery process, cross-examine other parties’ wit-nesses and object to the introduction of evidence.They may also file legal motions and make closingarguments.



Texas Compact/Texas

Project Evidentiary Hearings Begin in TexasNext Step

After hearing all the evidence, the two administrativejudges will issue a formal recommendation, known asthe “proposal for decision,” to the Texas NaturalRe s o u rce Conservation Commission—the agencycharged with licensing the proposed facility. If anyparty to the hearing objects to the judges’ proposal,that party may file written objections. Parties are alsoentitled to file replies to the objections.

The Texas Natural Resource Conservation Commis-sion will then evaluate the judges’ proposal and anyobjections and replies during a public meeting. Thecommission may then issue a final decision and order.This decision and order may be appealed to districtcourt in Travis County by any of the parties to thehearings.

BackgroundAs a precursor to the current administrative hearings,approximately 300 persons participated in a two-daypublic comment hearing in Sierra Blanca in August1996. Participants included local area residents, pub-lic officials, Mexican officials, Ad vocates forResponsible Disposal in Texas (a radioactive materialsusers group), members of the Sierra Blanca LegalDefense Fund, Greenpeace, and other environmentaland/or antinuclear organizations. Approximately 125comments were received about the proposed facility.Procedures for becoming a party to the administrativehearings were explained at that time.

Two additional public comment hearings were held inEl Paso and Alpine, Texas, in September 1996. Morethan 100 persons attended each of these hearings.

Spanish-English translators were provided at the pub-lic comment hearings.

For further information, contact the Texas Low-LevelRadioactive Waste Disposal Authority at (512)451-5292.

—TDL



On December 3, 1997, Nebraska Governor E. Benja-min Nelson wrote to 49 Governors to express hisbelief that “the compact system should be re-exam-ined and alternatives and options for LLRW disposalexplored.” In support of this view, he cited a report byF. Gregory Hayden, Nebraska’s Commissioner on theCentral Interstate Low - L e vel Radioactive Wa s t eCommission, who is an economics professor at theUniversity of Nebraska–Lincoln. Hayden’s 43-pagereport, entitled Excess Capacity for the Disposal of Low-Level Radioactive Waste in the United States Means NewCompact Sites Are Not Needed, and some material fromthe report’s extensive appendices were distributed tothe other Governors with Nelson’s letter.

Governor Nelson has previously questioned the com-pact system, and he hosted a summit on this issue inAugust 1997. (See LLW Notes, August/September1997, p. 3.) His December 1997 letter states that theHayden report “and the activities and discussionsoccurring across the nation” confirm his position.

Draft Versions Previously CirculatedNCSL Presentation Prior to Governor Nelson’s dis-tribution of the final report, Hayden presented “high-lights” of a draft version of his report at a meeting ofthe Low-Level Radioactive Waste Working Group ofthe National Conference of State Legislatures (NCSL)on November 5, 1997, in Washington, D.C.

Senator Feinstein’s Request A ten-page version ofthe draft report, dated November 1997, also reachedthe office of Senator Dianne Feinstein (D-CA), whothen sought a DOE analysis. In a letter datedNovember 12, 1997, Senator Feinstein wrote to DOESecretary Federico Peña asking DOE to “evaluate theassumptions and conclusions” of the draft report.

Senator Feinstein wrote again to Secretary Peña onJanuary 5, 1998, this time seeking an analysis ofHayden’s final report. As of press time, the DOEresponse was not yet available.

Central Compact/Nebraska

Nebraska Governor Supports Re-examinationof Compact System

Report on Economics CitedCompacts, California CritiqueHayden’s AnalysisHayden’s report received extensive media coverage inthe State of California after his appearance there onDecember 3, 1997, at a press conference with DanHirsh, President of Committee to Bridge the Gap, agroup that opposes the planned low-level radioactivewaste disposal facility in Wa rd Va l l e y. T h eSo u t h western Compact Commission subsequentlysent a letter to the region’s generators on December 19to counteract Hayden’s “misleading information aboutthe economic viability of the Ward Valley project.”Enclosed with the letter were comments from theCalifornia Department of Health Services criticizingHayden’s analysis.

The Midwest Interstate Low-Level Radioactive WasteCompact Commission also disputed some ofHayden’s conclusions. The compact’s comments weretransmitted to Hayden in a letter dated January 20,1998.

In addition, the Central Interstate Low - L e ve lR a d i o a c t i ve Waste Commission staff directed thecommission’s contractor, US Ecology, to reevaluate itsdisposal rate costs taking into consideration Chem-Nuclear’s long-term Barnwell initiative and Hayden’sprojections about the costs of disposal at the plannedlow-level radioactive waste facility in Boyd County,Nebraska. This rate study, conclusions of which werepresented at a meeting of the commission in lateJanuary 1998, found that disposal costs at the BoydCounty facility would actually be less than those atBarnwell under Chem-Nuclear’s proposed long-termplan. (See related story, this issue.)

See pages 11–13 for excerpts from the “highlights” ofHayden’s report and from the responses of the CaliforniaDe p a rtment of Health Se rvices and the Mi d we s tCompact.

continued on page 10

Central Compact/Nebraska (continued)

Nebraska Legislator Calls for Moratorium on Boyd County Facility



LLW Forum Corrects Hayden ReferencesOn January 29, Alternate Forum Convenor Kathryn Haynes wrote to F. Gregory Hayden to “correct two items relat-ed to LLW Forum activities mentioned in your recent report.” Excerpts from that letter follow.

“Consensus Emerging ...” In this section, you char-acterize the purpose and content of a panel discussionheld at the LLW Forum’s October 1997 meeting.During this session, entitled “The Future of Low-L e vel Radioactive Waste Management,” Fo ru mParticipants joined with representatives of nuclearpower, medical, government and other generators,current and potential disposal operators, and otherstate organizations to discuss a wide range of issues.As subsequently noted in our meeting report, theseissues included

• the relative importance of waste volumes andradioactive characteristics, including curie content,in making waste management decisions;

• how best to assure adequate disposal access, andthe relative advantages of private-sector andgovernment action in providing such access;

• what constitutes equity in waste disposal and howmeritorious a goal it is;

• what the role of the compact system should be;and

• factors and circumstances that contribute tosuccessful development of disposal capacity

There was no “special panel convened to discusswhether the Compact system was viable any more in

light of the excess of existing capacity over demand.”As evidenced by the published agenda for this portionof the meeting and the meeting report, the purpose ofthe session was quite different. In addition, this dis-cussion was only one in a continuing series of sessionsheld by the LLW Forum which, as you note, will con-tinue into 1998.

The session was intended to offer an opportunity fordiscussion, not to arrive at a consensus. In fact, nei-ther Forum Participants nor others participating inthe session endorsed any conclusion regarding the pre-sent management system and certainly not “that newsites were likely to be uneconomical” or “that the onlydriver for new sites is the Compact law, not demand.”

“Barnwell” You state that “[a]ccording to LLW Notes,the remaining disposal capacity of Barnwell is nowabout 7.9 million cubic feet, and the expected annualvolume to be received is less than 275,000 cubic feet.”You go on to extrapolate for the next 29 years usingthese volume figures. However, what LLW Notes actu-ally reported was that estimated volumes for fiscalyears 1997-98 and 1998-99 “are currently less than275,000 cubic feet.” LLW Notes has been followingthe vagaries of low-level radioactive waste disposal vol-umes for over eleven years and would never attempt touse data from any two years—and these two in partic-ular—to project annual disposal volumes. Historicalrecords reflecting substantial fluctuations in annualvolumes support the wisdom of this editorial policy.

Following the release of Hayden’s report, NebraskaSenator Chris Be u t l e r, who chairs the Na t u r a lResources Committee in the state Senate, issued apress release announcing a “proposed compromise” onthe issue of low-level radioactive waste disposal in thestate. Senator Beutler called for the licensing processto continue, but for the state to enact a ten-year mora-torium on construction of a facility if a license is issued.

“With waste volumes dropping and projected dispos-al cost[s] climbing, it may no longer be economically

feasible to build a number of regional compact dis-posal facilities,” Beutler said. He also noted the appar-ent lack of support for the compact system at theNCSL Low-Level Radioactive Waste Working Groupmeeting in November, at which “nearly everyoneexpressed the belief that the regional compact systemhas not worked and we need to explore alternatives.”Beutler, did, however, oppose proposed legislation towithdraw from the compact, asking, “Why exposeNebraska to potential liability of millions at this time?”

—CN



The Low-Level Radioactive Waste Policy Act of 1980encouraged states to join in Compacts to establishnew radioactive waste sites serving the states in thoseCompacts. Since its enactment, such siting effortshave met with great public controversy. Not a singlenew site has opened in those 17 years under theCompact system.

While the controversies have raged publicly, marketand technological forces have quietly; but dramatical-ly altered the situation. Waste volumes have plum-meted, mainly due to volume reduction techniques.Current volumes are a mere one-ninth of those in1980. At the same time, there is now a significante xcess of capacity at existing disposal facilities.Capacity outstrips demand; the three existing sites arecompeting aggressively for a persistently decliningsupply of waste; and there is just no room in thealready strained market nor need for new Compactfacilities, necessarily charging far higher prices ands e rvicing only a small part of the market (theCompact).

The economic bottom line is that existing capacity fordisposal exceeds the volume of waste needing dispos-al, without any change to the existing system. Newdisposal sites are no longer needed, nor would they beeconomically viable if built.

Main Findings

New Compact Sites Not Needed …Today there arestill three commercial LLRW facilities, each withexcess capacity, and the volume of waste has beenreduced ninefold. A consensus has developed that inlight of existing capacity exceeding demand, newCompact sites are not needed and would be uneco-nomical …

Decreasing LLRW Volumes The LLRW volumesgenerated for disposal have decreased precipitouslysince 1980 and are continuing to fall at a rapid rate…

Excess Capacity There is currently an excess capacityfor LLRW disposal …

Excerpts from Report Highlights: Excess Capacity for the Disposal of Low-LevelRadioactive Waste in the United States Means New Compact Sites Are Not Needed

by F. Gregory Hayden

Technological Factors and Ma rket Fo rc e s T h esteady volume reduction is due to technological fac-tors and market forces … Shippers are sending thesame amount of radioactivity in fewer packages, dra-matically reducing volume and extending capacity ofexisting disposal facilities. These trends are likely tocontinue.

Waste is Not Accumulating in On-Site Storage …While volumes have fallen steeply, the amount ofradioactivity shipped has actually increased. showingthat waste is not being held back but rather merely isbeing more greatly compressed …

The California Case Examining the California situa-tion, where the assertion of “waste piling up” for lackof disposal capacity or supposed concerns aboutBa r n well has been most aggre s s i vely adva n c e d ,demonstrates empirically that it is not the case …There has been no reduction in total radioactivity ofwaste shipped for disposal, demonstrating that nomeasurable waste is being held back in on-site storage …

Vicious Financial Cycle The current commercialfacilities are caught in a vicious financial cycle … Allthree existing disposal facilities are aggressively tryingto find more business because their current capabili-ties are much greater than the falling volume ofwaste … The vicious cycle would only be made worsewere there new Compact sites competing with thethree existing facilities.

New Sites Would Not Be Viable … A new Compactsite would not be viable for three reasons. First, costfor any new facility is far higher than the costs at cur-rent facilities. Second, since there is not enough wasteat Barnwell when it draws waste from 49 states, therecertainly is not going to be an adequate volume ofwaste from 3, 4, or 5 states in a Compact. Finally, thesmall volume of waste available for any new site wouldnot allow the facility to take advantage of economiesof scale … Beyond new disposal sites not being eco-nomically viable, their existence could, in addition,bring down the existing system which is meeting cur-rent demand and can continue to do so for decades.

Compact Law, Not Demand, Is Driver For NewSites The only driver for new sites has been theCompact law, not demand …

Following a review of your report, entitled “ExcessCapacity for the Disposal of Low-Level RadioactiveWaste in the United States Means New Compact SitesAre Not Needed,” I would like to offer the followingcomments on its discussions of the Mi d we s tCompact's recent cessation of development activitiesand national disposal policy:

1) In addressing the Midwest Compact’s decision tocease development of a regional disposal facility,our Commission has been very careful to alwaysindicate that the decision was based oncircumstances that were specific to our Compact.Compacts and states widely differ in their sitingapproaches, environment, politics, waste volumes,development progress, financial resources, sunkcosts, and many other characteristics … Thesed i f f e rent characteristics preclude inferences orconclusions that the action taken by theCommission in June, 1997, would be similarlyappropriate in another compact or unaffiliatedstate …

2) The section on economic viability focuses onsupply and demand, and the resultant price andvolume impacts, but gives short shrift to thecompacts’ role as a monopoly supplier of disposalcapacity (page 21). It dismisses any impact arisingfrom this characteristic by arguing that demand iselastic, and price increases will inevitably result inre venue shortfalls. Howe ve r, the politicaldimensions of waste issues in general, and nationall ow - l e vel radioactive waste disposal policy inparticular, cannot be ignored and will probably playan important role in the future. If politics andequity considerations continue to discourage an“open market,” technological impediments andcost/benefit thresholds may finally limit furthersignificant declines in disposal volume … especiallywhere no substitutes are readily available for the useof radioactive material.



Excerpts from a letter letter dated January 20, 1998, from Gregg Larson, ExecutiveDirector of the Midwest Interstate Low-Level Radioactive Waste Compact Commission,

to F. Gregory Hayden

3) The report quotes an Associated Press report thatthe Midwest Compact's action “... marked thefailure of the low-Level Radioactive Waste PolicyAct of 1980” (page 8). This cite is surprisingbecause the Associated Press has never been ap a rticularly authoritative or accurate source ofinformation on national low-level radioactive wastepolicy. Moreover, new disposal sites are not the onlymeasure of the success or failure of the Act. Forexample, since 1980, access to disposal capacity hasbeen maintained, despite the initial intent of thesited states to close existing disposal facilities orlimit access, and generators have substantiallyreduced the volume of waste disposed. In addition,efforts to implement the Act have resulted in moresafe and stable waste forms, more complete wastecharacterization, minimization of mixed waste …and better waste manifesting and tracking systems.

4) The report’s conclusion frequently refers to equityin the context of 12 new disposal facilities (pp. 24-26). The creation of 12 new disposal sites, however,was neither an original idea in 1980 (p. 24), norintended as an outcome of the Low - L e ve lRadioactive Waste Policy Act. Even though thesubsequent compact/state alignments could havetheoretically produced 12 or more new facilities,most observers, including those actively involved inthe development of new disposal capacity, neverexpected that 12 new facilities would result …. Thecurrent federal law is silent on the number of newfacilities that would be needed to fulfill any stateequity considerations, but is flexible enough toaccommodate a wide variety of outcomes.



Hayden’s thesis is that declining low-level radioactivewaste (LLRW) volumes have resulted in excess dispos-al capacity at existing facilities, making the develop-ment of new facilities unnecessary. His report has thefollowing flaws, however, that undermine the validityof his analysis:

1) He misplaces the focus of the LLRW debate. Theprinciple issue has never been the capacity ofexisting disposal facilities; rather, it is reliable accessto such facilities. In this regard, he ignores theinstability of the existing system and the tenuousnature of access to existing sites … The samepolitical forces that threatened to close existingLLRW disposal facilities in 1979 are still in effecttoday, and it would be foolish to ignore them.

2) He fails to take into account the commercialLLRW disposed of at Envirocare, thereby grosslyexaggerating the reduction in LLRW volume. Thereason is as follows: the national figures he cites onLLRW shipped to commercial facilities do notinclude waste shipped to Envirocare …

3) His waste volume projections fail to take intoaccount decommissioning waste from nuclearpower reactors, which will add a total of about 25million cubic feet of LLRW to the national wastestream over the next 20-30 years …

4) He uses a table showing the activity of LLRWshipped from California to argue that LLRW is notbeing held in storage. The table, however, shows adramatic decline in activity in 1994 and 1995, thetwo most recent years for which records exist. Thedata, therefore, do not support his assertion; rather,they indicate exactly the opposite! In addition,several California institutions have come forwardwith photographs of long-lived waste currentlybeing stored. His rough analysis was, apparently,done without any field work to substantiate hisfinding.

5) He argues that new sites will not be economicallyviable because the two facilities that currentlyaccept waste from the entire nation are on sucht e n t a t i ve economic footing that any newcompetition will cause them to fail. This isinaccurate. The Envirocare facility is not struggling;in fact, its business is so good that a number ofother companies are attempting to enter the marketand provide similar services. While the operator ofthe Barnwell facility is, in fact, seeking more wastefor disposal, it is doing so because the State ofSouth Carolina has made the company responsiblefor any shortfall in the tax-supported scholarshipfund. The operator estimates this shortfall to be $7-10 million per year at present volumes. Were it notfor the $235 per cubic foot state tax and theobligation to maintain the scholarship fund at afixed level, the operator would now be receivingsufficient waste to be economically viable. Haydensimply ignores factors unique to South Carolinathat affect the economic viability of the Barnwellsite …

Excerpts from the California Department of Health Services’ analysis of F. GregoryHayden's report entitled Excess Capacity for the Disposal of Low-Level Radioactive

Waste in the United States Means New Compact Sites Are Not Needed


Event Location/Contact

State and Compact Events

February

CentralCompact/Nebraska

CentralMidwestCompact/Illinois

NortheastCompact/Connecticut/New Jersey

So u t h we s t e rnCompact/California

TexasCompact/Texas

Ma s s a c h u s e t t s

Facility Review Committee meeting

Illinois LLRW Task Group meeting: presentation regarding theavailability of other facilities; discussion on economic factors affect-ing decisions to build a facility

Connecticut LLRW Advisory Committee meeting

Connecticut Hazardous Waste Management Service Board ofDirectors meeting

New Jersey LLRW Disposal Facility Siting Board meeting

Southwestern LLRW Commission meeting: discussion of exporta-tion issues, waste classification, and current legislation

Texas LLRW Disposal Authority quarterly meeting

Texas State Office of Administrative Hearings (SOAH): evidentiaryhearings on the proposed LLRW disposal facility in Sierra Blanca,Texas; the hearings, which began in January in Sierra Blanca, willcontinue throughout the month. At the conclusion of the hearings,SOAH will make a recommendation to the regulator (TNRCC) onwhether or not to issue a license.

LLRW Management Board meeting

Lincoln, NEContact: Don Rabbe(402)476-8247

Bloomington, ILContact: Helen Adorjan(217)528-0538

Hartford, CTContact: Ron Gingerich(860)244-2007

Hartford, CTContact: Ron Gingerich

Trenton, NJContact: John Weingart(609)777-4247

San Bernardino, CAContact: DonWomeldorf (916)323-3019

Austin, TXContact: Lee Mathews(512)451-5292

El Paso & Austin, TXContact: Lee Mathews

Boston, MAContact: Carol Amick(617)727-6018


March Event Location/Contact

State and Compact Events continued

AppalachianCompact/Pennsylvania


NorthwestCompact/Washington

RockyMountainCompact






Pennsylvania LLRW Advisory Committee meeting


Northwest Interstate LLRW Compact Commission meeting

Rocky Mountain LLRW Board meeting

Southwestern LLRW Commission-sponsored workshop on wastestreams and available waste treatment technologies, to be presentedby the National LLW Management Program

LLRW Management Board-sponsored meeting for radioactive mate-rials users


Southwestern LLRW Commission-sponsored workshop on wastestreams and available waste treatment technologies, to be presentedby the National LLW Management Program

LLRW Management Board public forum on the transportation ofradioactive materials and radioactive waste

Harrisburg, PAContact: Rich Janati(717)787-2163

Hartford, CTContact: Ron Gingerich(860)244-2007

Portland, ORContact: Mike Garner(360)407-7102

Santa Fe, NMContact: TracieArchibold(303)825-1912

Ontario, CAContact: DonWomeldorf(916)323-3019

Boston, MAContact: Paul Mayo(617)727-6018

Hartford, CTContact: Ron Gingerich

Concord, CAContact: DonWomeldorf

Springfield, MAContact: Paul Mayo

April Event Location/Contact

States and Compacts

Midwest Compact Following the MidwestInterstate Low-Level Radioactive Waste

Commission’s June 1997 announcement that it willcease development of a regional disposal facility inOhio, the commission determined to distribute toregional utilities about $10.2 million in proceedsfrom the dissolution of its Export Fee Fund.The commission had plannedto distribute the funds byDecember 31, 1997.However, distributionhas been delayed bythe submission of aclaim asserting enti-tlement to a portionof the funds by threeMichigan utilities. The com-mission has responded to theMichigan utilities by summariz-ing the financial, administrative, and legal historyassociated with the export fee assessments that werepaid by the Michigan utilities and the transfer ofthese monies to the State of Michigan during thetime that it served as the compact’s host state. Basedon this history, the commission has concluded thatno export fees that were paid by the Michigan utili-ties remain in the current balance in the Export FeeFund.

—TDL

Northwest Compact/Washington The UtahDepartment of Environmental Quality’s (DEQ)

Division of Radiation Control is currently reviewinga Siting Plan Application for a low-level radioactivewaste disposal facility that was submitted by LaidlawEnvironmental Services in the summer of 1997. Theproposed facility would be co-located with an exist-ing commercial hazardous and toxic waste disposalfacility and would use an existing, unused landfillcell. The Utah Radiation Control Board has issued apreliminary decision that the proposed facility meetsstate siting criteria. That decision and a draft SitingEvaluation Investigation Report are currently avail-able for public review and comment. In addition,public hearings on the proposal will be held onTuesday, March 3. Although DEQ has not received aformal license application yet, staff report thatLaidlaw has indicated that they plan to acceptNARM and low-level radioactive waste within ClassA limits similar to that which is accepted at theEnvirocare facility.

—TDL

Federal Agencies andCommittees

U.S. Department ofEnergy In a letter

dated December 3, 1997,DOE’s Assistant Secretaryfor EnvironmentalManagement, Alvin Alm,stated that, “the Departmentdoes not believe a discussionrelated to DOE’s accep-tance of commercial low-level radioactive wastewould be productive at thistime.” This letter was sentto Dana Mount, Chair of

the Southwestern Low-LevelRadioactive WasteCommission, in response toMount’s letter of October 23

asking DOE to discuss the potential for acceptingcommercial low-level radioactive waste from theSouthwestern Compact, on an interim basis, at thefederal disposal facilities in the States of Nevada andWashington.

—RTG

U.S. Department of Energy Dan Reicher hasbeen appointed as DOE’s new Assistant

Secretary for Energy Efficiency and RenewableEnergy. Prior to this appointment, Reicher served asSenior Policy Advisor to Secretary of Energy FedericoPeña. Reicher has nearly 20 years of experience withenvironmental and energy policy and law, includingseveral other positions within DOE as well asemployment as a Senior Attorney for the NaturalResources Defense Council. At DOE, he has beenengaged in policy development and implementationparticularly in environmental cleanup, nuclear wastemanagement, and nuclear power.

—RTG

Radbits


Special Feature: Risk Analysis


A recently released epidemiological study byre s e a rchers at the Un i versity of California–LosAngeles finds that exposure to internal and externalradiation appears to have increased the risk of death tolaboratory workers from certain cancers. However,mortality rates from all causes and from heart diseasein particular were lower for the workers than for eitherthe general U.S. population or for other worker cohort s .

The study, entitled “Epidemiological Study toDetermine Possible Ad verse Effects toRo c k e t d y n e / Atomics International Wo rkers fro mExposure to Ionizing Radiation,” was based on datafor 4,563 Rocketdyne/Atomics International employ-ees. These employees worked at the Santa Susana FieldLaboratory in Ventura County, California, between1950 and 1993. They conducted research activitiesranging from nuclear reactor operation to rocketengine testing under a DOE contract.

UCLA researchers performed a statistical analysis ofdeath certificate data through December 31, 1994.Company employment and radiation monitoringrecords were also examined to determine the numberof smokers, ages of the sample, and to estimate sometoxic chemical exposures based on job descriptions.

The impetus for the study was the surrounding com-munity’s concern. In 1991, under a grant from DOE,the California Department of Health Services (DHS)investigated the incidence of cancer deaths in thecommunity but, due to a small sample size, the studywas inconclusive. This gave rise to the current studyand a similar upcoming study, to determine the possi-ble adverse effects from exposure to toxic chemicals.

Epidemiological FindingsThe study found that exposure to external radiationappears to have increased the risk of lung cancer.Confounding effects of smoking, asbestos, hydrazinee x p o s u res or other unmeasured risks from otherchemical exposure could not be ruled out, however.In addition, exposure to internal radiation appears tohave increased the risk of cancers of the upper-aero-digestive tract, although limitations existed in measur-ing workers’ internal dose. Again, confounding effectscould not be ruled out.

The study also determined that an associationbetween cumulative external dose and total cancermortality was observed indicating a risk 6 to 8 times

“Rocketdyne” Study on Radiation Riskgreater than allowed by the current standard for expo-sures to low doses of radiation. The results suggestthat the health effects of low levels of radiation expo-sure may vary according to age at exposure, but thestatistical power for measuring such an effect was low.

Oversight Panel RecommendationsAn oversight panel for the Rocketdyne study hascalled for a re-examination of the standard for expo-sures to low doses of radiation. The panel is composedof five representatives from the surrounding commu-nity selected by local legislators and seven membersselected by California DHS. The panel is co-chairedby Daniel Hirsch of Committee to Bridge the Gapand David Michaels of the De p a rtment ofCommunity Health and Social Medicine at the CityUniversity of New York Medical School.

Besides recommending that regulatory bodies revisittheir standards, the oversight panel recommendedthat the second study on health effects due to toxicchemical exposure be completed as soon as possible.In addition, the panel suggested that Rocketdyneworkers continue to be monitored since only a frac-tion of the work force has died, and long-latencyexposure effects may yet emerge. The panel also rec-ommended that a comparable study of the neighbor-ing community be carried out under the oversight ofthe panel. —RTG

HPS President Critiques StudyThe President of the Health Physics Society, OttoRaabe, has strongly criticized the manner in whichthe study was conducted.

Overall, the statistical power of this study isweak. The cancers that they pull out of thedata as showing radiation trends are veryselective. The “upper-aerodigestive tract” can-cer association with radiation exposure sug-gests a random observation since that strangegrouping of cancers is not known to be a markof radiation exposure. It is a mark of tobaccouse, alcohol consumption, and excessive con-sumption of spicy food. None of these possi-bilties can be ruled out by this study. In addi-tion, they do not appear to have shown adose-response relationship for those effects

On December 19, 1997, Committee to Bridge theGap and three private citizens filed a motion in theU.S. District Court for the Northern District ofCalifornia seeking to enjoin federal officials fromtransferring land at Ward Valley, California, to thestate for use in siting a low-level radioactive waste dis-posal facility based upon a 1993 record of decisionissued by then-Secretary of the Interior Manuel Lujan.The motion was filed in a lawsuit initiated in January1993 that has been on inactive status for several yearsfollowing the entry of a stipulation amongst the par-ties. Under the terms of the stipulation, the federaldefendants agreed to rescind Lujan’s issuance of therecord of decision, as well as other actions relating tothe proposed land transfer.

The following parties are listed as defendants to theaction: the U.S. Interior Department (DOI) and DOISe c re t a ry Bruce Babbitt; DOI’s Bu reau of LandManagement; and the U.S. En v i ro n m e n t a lProtection Agency and its Ad m i n i s t r a t o r, Caro lBrowner.

ArgumentNew Litigation On January 30, 1997, US Ecologyfiled suit in the U.S. Court of Federal Claims againstthe United States of America for breach of a contractto sell 1,000 acres of federal land in Ward Valley,California, to the state. The action seeks reimburse-ment for US Ecology’s past costs, lost future profits,and lost opportunity costs related to the planned low-level radioactive waste disposal facility at Ward Valley.(See related story, this issue.)

Subsequently, on February 24, 1997, US Ecologyfiled suit in the U.S. District Court for the District ofColumbia against DOI, Babbitt, and the Bureau ofLand Management. This suit seeks to compel theInterior Department to transfer Ward Valley to theState of California. (See LLW Notes, April 1997,pp. 18–21.) It is similar to an action filed in the dis-trict court by the California Department of HealthSe rvices (DHS) and DHS Di rector S. KimberlyBelshé, on January 31, 1997. (See LLW Notes, March1997, pp. 1, 16–20.)

Courts


Committee to Bridge the Gap v. Babbitt

CBG Seeks to Enjoin California Land TransferImpact on Prior Agreements and Rulings Theplaintiffs argue that the new lawsuits constitute anattempt by US Ecology and DHS to circumvent thestipulation and court order in Committee to Bridge theGap v. Babbitt because the new suits are based uponthe theory that Lujan’s Record of Decision is valid—atheory which the plaintiffs assert directly conflictswith the stipulation and court order entered into ear-lier. The plaintiffs complain that they may be irrepara-bly injured if, as a result of the new litigation, Babbittis ordered to transfer the Ward Valley land to the stateon the basis of Lujan’s 1993 record of decision. Toavoid such injury, the plaintiffs are requesting that thecourt issue an order enforcing both the terms of thestipulation and the court’s previous order by enjoiningBabbitt from transferring the land.

The present litigation was brought to challengethe validity of Secretary Lujan’s illegal actions. Ifany doubt still exists about the legality of thoseactions, about the validity of the Stipulation inthis case, or about any action Secretary Babbitttook to rescind the Record of Decision, theyshould be resolved in this Court. The Courtmust act to enforce its own order in this case, topreserve its jurisdiction, and to block the Stateand US Ecology’s “end-run” around the Court.

In support of their position, the plaintiffs assert that“the court unquestionably has the power to issue aninjunction in aid of the stipulation and its prior order,and it must do so to preserve its jurisdiction.” Theyallege that the prior stipulation did not end the instantcase, but rather committed the Interior Secretary toundertake a new legal review of the land transfer.Moreover, the plaintiffs argue that when the case wasinitially placed on inactive status, the court specifical-ly reserved to the plaintiffs the right to revisit thecourt for further relief if necessary.

Courts continued


Background

On January 7, 1993—just prior to a change in admin-i s t r a t i o n s — t h e n - Interior Se c re t a ry Manuel Lu j a nannounced his intention to sell the Ward Valley site.(See LLW Notes, January 1993, p. 1.) Immediatelythereafter, several opposition groups and individualsfiled a lawsuit—Desert Tortoise v. Lujan—in the U.S.District Court for the Northern District of Californiaseeking to prevent the land transfer until federal agen-cies have complied with the Endangered Species Actby designating critical habitat for the desert tortoise.On January 8, 1993, the district court issued an ordertemporarily restraining federal agencies and theird e p a rtmental heads from selling the land. (Se eLLW Notes, January 1993, p. 8.) Committee to Bridgethe Gap was filed a few weeks later—on January 19,1993. It seeks to postpone the land transfer untilalleged violations of the National En v i ro n m e n t a lPolicy Act (NEPA) and the Federal Land Policy andManagement Act have been remedied.

On January 19 , 1993, then-Secretary Lujan signed arecord of decision for the Ward Valley land transfer.However, incoming Interior Secretary Bruce Babbittrescinded the record of decision on February 19,

1993. (See LLW Notes, February 1993, pp. 16–17.)Babbitt then instructed the Interior Department toreevaluate recent aspects of the Ward Valley landtransfer process under NEPA. (See LLW Notes, March1993, p. 11.)

On March 3, 1993, all parties to Committee to Bridgethe Gap agreed to suspend all court actions in the case,pending review of the transfer by Secretary Babbitt. Inaddition, Interior and the Bu reau of LandManagement agreed to rescind certain actions, includ-ing the signing of the record of decision, the rejectionof an indemnity selection application concerningWard Valley, the decision to treat the supplementalenvironmental impact statement as an environmentalassessment, and the issuance of a final supplementalenvironmental impact statement. The stipulation pro-vides for at least thirty days’ advance notice prior totransfer of the land. (See LLW Notes, April 1993, p. 8.)The case was subsequently placed on inactive status.

On February 8, 1994, the U.S. Fish and WildlifeService designated 6.4 million acres of critical habitatfor the desert tortoise—including Ward Valley. (SeeLLW Notes, February/March 1994, p. 17.) The DesertTortoise action was subsequently dismissed.

—TDL

US Ecology v. United States of AmericaCalifornia Department of Health Services v. United States of America

Summary Judgment Motions Filed inCalifornia Breach of Contract Action

On November 21, 1997, attorneys for the UnitedStates of America filed a motion for summary judg-ment in a lawsuit initiated by US Ecology and theCalifornia Department of Health Services in January1997 in the U.S. Court of Federal Claims. The suitalleges that the federal government breached a con-tract to sell 1,000 acres of land in Ward Valley,California, to the state for use in siting a low-levelradioactive waste disposal facility.(See LLW Notes,April 1997, pp. 18–21.) The United States’ motionwas accompanied by a memorandum of points andauthorities in support thereof and in opposition to amotion for partial summary judgment previously filedby the plaintiffs on September 15, 1997. In thatmotion, the plaintiffs had requested summary judg-ment on two issues: the existence of and the breach of

an express contract between the U.S. Department ofInterior and the State of California to sell Ward Valley.(See LLW Notes, August/September 1997, p. 21.)

The plaintiffs responded to the federal government’sfilings with a memorandum of points and authoritiesin opposition to the defendant’s motion for summaryjudgment and in reply to the defendant’s oppositionto the plaintiffs’ motion for partial summary judg-ment. The plaintiffs’ memorandum was datedDecember 29, 1997.

Following is a brief summary of the arguments and anal-ysis used by the parties in their filings to the court. Personsinterested in a detailed review are directed to the docu-ments themselves.


No Implied-in-Fact Contract was Created The gov-ernment also disputes the plaintiffs’ claim that animplied-in-fact contract to sell the land was created.The defendant argues that a direct sale of public landsmust be done by written contract, and, therefore, animplied-in-fact contract cannot form the legal basis forthe Ward Valley land transfer. Moreover, the UnitedStates asserts that even if a written agreement require-ment did not exist, the facts outlined in the plaintiffs’complaint do not support the existence of an implied-in-fact contract. In addition, the United States main-tains that even if an express or an implied-in-fact con-tract exists between it and the State of California,US Ecology is not a third-party beneficiary.

None of the documents or actions whichUS Ecology asserts constitute a contract for atransfer of ownership of the Ward Valley sitefrom the United States to California contain anyevidence of an intent on the part of theGovernment to directly benefit US Ecology. Thefact that the transfer of the Ward Valley site toCalifornia would advance the process of USEcology building and operating a LLRW dispos-al facility on the site, or that US Ecology wouldprofit, is not sufficient to show that US Ecologywas an intended third-party beneficiary.

If a Contract Existed, the United States Has NotBreached It The government affirms that even if thecourt were to find that a contract to sell Ward Valleyexisted, the United States has not breached it. Thedefendant claims that any such contract contained noprovisions relating to the time of transfer and that anyrequired transfer is not late given that review of theland sale is continuing under FLPMA and NEPA andthat the California Department of Health Services hasapplied for a permit to conduct additional tests at thesite.

Issues of Material Fact Prevent the Granting ofPlaintiffs’ Motion for Partial Summary JudgmentThe United States concludes its memorandum byarguing that, even if the court finds that this matter isnot resolved by the controlling principles of statutoryand contract law cited by the government, the plain-tiffs’ motion for partial summary judgment cannot begranted because issues of material fact remain in dis-pute. The defendant asserts that, in such a case, “dis-covery of [the] Plaintiffs’ declarants would be neces-sary to resolve the blatant inconsistencies in their state-ments and contradictions with documents generated”at the time of the issuance of the Record of Decisionon the Ward Valley land transfer.

Courts continued


Defendant’s Memorandum

Lack of a Contract The United States argues that nocontract to sell the Ward Valley site was ever created.In the first place, the government asserts that ManuelLujan—the Se c re t a ry of the De p a rtment of theInterior (DOI) at the time of the signing of theRecord of Decision (ROD) to sell the Ward Valleysite—was enjoined from so doing by order of theU.S. District Court for the Northern District ofCalifornia. (See related story, this issue.) Moreover, thedefendant asserts that Lujan, as a matter of law, didnot have the power to obligate the United States to sellthe land prior to the conclusion of the environmentalreview process under the Federal Land Policy andManagement Act (FLPMA) and the Na t i o n a lEnvironmental Policy Act (NEPA).

While the ROD must precede agency action, theROD does not itself constitute the planned agen-cy action ... Rather, it documents the conclusionof the environmental review process required byCongress in NEPA. A ROD is merely an internalagency decision document that establishes norights and imposes no obligations ... It cannot beconstrued as an offer or acceptance in pursuit offormation of a contract. A validly issued RODwould have been the point from which BLM[the Bureau of Land Management] could havepursued sale of the site pursuant to the regula-tions. However, in this case, DOI could not pro-ceed to form a contract in compliance with theregulations since it was enjoined from taking anyaction in connection with the proposed sale.

The United States also argues that, as a matter of lawat the time of the alleged contract, the site was notavailable for direct sale because two years had notexpired since the filing of an indemnity selectionapplication by the State Lands Commission. (SeeLLW Notes,, October 1992, p. 5.) The governmentargues that federal law prohibits sale of lands for twoyears after the filing of an indemnity selection appli-cation.

In addition, the United States asserts that no legallyenforceable contract to sell the Ward Valley site wascreated because the parties had not met all applicablelaws and regulations.

US Ecology v. USACalifornia DHS v. USA (continued)

Courts continued


Plaintiffs’ Memorandum

U.S. Does Not Deny Facts Showing Contract’sExistence The plaintiffs argue that it would beappropriate for the court to award them partial sum-mary judgment because the United States does notcontrovert any of the material facts that demonstratethe existence of all essential elements of a contract tosell the Ward Valley site, nor—they claim—does thegovernment dispute the facts which establish thebreach of that contract.

Lujan Was Not Precluded by Law from Enteringinto a Contract The plaintiffs challenge the govern-ment’s position that Lujan did not have the legalauthority to enter into a contract for the sale of WardValley. In the first place, they assert that the January 8,1993 temporary restraining order from theU.S. District Court for the Northern District ofCalifornia did not purport to deprive Secretary Lujanof the power to enter into a binding contract, butrather merely proscribed the transfer of the WardValley land—an event that would not occur untilissuance of a patent. Moreover, the plaintiffs contendthat, had the court tried to interf e re with theSecretary’s power to contract, such action on the partof the court would have constituted an illegal viola-tion of the principles of the U.S. Constitution thatprescribe separation of powers. The plaintiffs alsopoint out that, even if the January 8, 1993, temporaryrestraining order could be construed as prohibitingthe Secretary from contracting for the sale of the WardValley site, it expired on January 18, 1993 by opera-tion of law—the day before Lujan signed the record ofdecision. And the plaintiffs assert that, in any event,the temporary restraining order was void because thecourt that issued it lacked jurisdiction over the subjectmatter of the underlying dispute.

The plaintiffs also challenge the government’s asser-tion that any contract to sell Ward Valley was defec-tive in that it failed to comply with FLPMA andNEPA. They argue that existing law and prior courtprecedent make clear that a “failure to comply withevery jot and tittle of governing regulations will notrender a federal contract void.” They also point outthat both the former Interior Secretary and formerBLM Director believe that the Ward Valley sale com-plied with all applicable laws and statutes—a pointthey find noteworthy given the considerable deferencethat courts must afford to an agency’s interpretationof its own regulations.

Finally, the plaintiffs contest the government’s asser-tion that the Secretary was precluded from sellingWard Valley due to the filing of the indemnity selec-tion application. They assert, among other things,that any two-year limitation on the sale of lands afterthe filing of an indemnity selection application is notapplicable to the instant case and that, in any event,the application may be void as a matter of law for fail-ure to follow California regulatory requirements.

An Implied-in-Fact Contract Was Created Theplaintiffs also contest the government’s denial that animplied-in-fact contract was created between Interiorand California. In the first place, the plaintiffs assertthat a specific writing is not required under FLPMAfor such transactions, but rather only a “written accep-tance” of a purchase offer. The plaintiffs argue thatthey have provided ample evidence of writings evi-dencing a mutual intent to contract between the par-ties to meet the requirements of federal law. Moreover,the plaintiffs protest that the government has not dis-puted the material facts that demonstrate the exis-tence of all essential elements of an implied-in-factcontract to sell the Ward Valley site.

US Ecology Was a Third-Party Beneficiary Theplaintiffs also challenge the government’s claim that, ifa contract were found to exist, US Ecology was not athird-party beneficiary.

The sole purpose for California’s acquisition ofthe Ward Valley Site was to allow US Ecology, asthe State’s licensee, to construct and operate theproposed LLRW disposal facility and therebysatisfy the State’s obligations under the federalLow-Level Radioactive Waste Policy Act of 1980... and the Southwestern Low-Level RadioactiveWaste Disposal Compact Consent Act ...Because applicable federal and State law mandat-ed that any LLRW disposal facility be built onland in either federal or State ownership ... andbecause federal policy prohibited siting the facil-ity on BLM land, California sought to obtainland for the facility from the United States. TheUnited States was fully aware that Californiaintended to use the Site for this purpose, andthat US Ecology was the State’s license-designeeto construct and operate the facility, since at least1987.


Courts continued


Stilp v. Hafer

Challenge of PA’s Siting Law Appealed to Higher CourtOn December 8, the petitioners in a case challengingthe passage of Act 12 of 1988, known as thePennsylvania Low-Level Radioactive Waste RegionalDisposal Facility Act, filed a notice of appeal to theSu p reme Court of the Commonwealth ofPe n n s y l vania. The petitioners are contesting theNovember 7, 1997 decision of the CommonwealthC o u rt of Pe n n s y l vania to grant the re s p o n d e n t s’motion for summary judgment in the action.

Petitioners in the action are three individuals living inthe Commonwealth of Pennsylvania. Respondents arethe Commonwealth of Pennsylvania, PennsylvaniaGovernor Thomas Ridge, and Pennsylvania TreasurerBarbara Hafer.

As of press time, a briefing schedule had not beenestablished by the court.

Lower Court’s Decision In granting summary judgment to the respondents,the Commonwealth Court of Pennsylvania held thatthe action is barred by the doctrine of laches.

processes used to pass the bill were public and pub-lished at the time of its enactment, and given that theconstitutional provisions that the petitioners claimwere violated have remained largely unchanged forover 100 years.

The court also found that the petitioners’ delay inbringing the action has prejudiced the respondentsbecause they have, pursuant to the mandates of Act12, promulgated regulations, entered into contracts,held public hearings, and prepared reports for theGeneral Assembly. Such compliance, the court noted,has cost millions of dollars. (See LLW Notes, Winter1997, pp. 22–23.)

Issues on AppealThe petitioners have presented two issues for the courtto review:

• May the affirmative defense of laches pre-empt the constitutional requirements forthe passage of legislation?

• May the affirmative defense of laches beapplied when the defendant has failed tocarry out its burden of proof on the ques-tions of unreasonable delay and prejudice?

BackgroundThe petitioners contended that Act 12 was passed inviolation of the Pennsylvania Constitution because

• it was altered or amended during its passagethrough the General Assembly in such a manner asto change its original purpose;

• neither the House nor the Senate referred the bill tocommittee after its original purpose was changed;and

• the bill was not considered on three days in eitherthe House or the Senate after its original purposewas changed.


The Doctrine of Laches

This doctrine “bars relief when the complainingparty is guilty of want of due diligence in failingto promptly institute the action to the prejudiceof another ... In order to prevail on an assertion oflaches, respondents must establish: (1) a delayarising from petitioners’ failure to exercise duediligence; and (2) prejudice to the respondentsresulting from the delay.”

Whereas the respondents argued that the petitionersdid not act diligently in filing their complaint sincethey waited eight years to do so, the petitioners con-tended that they were not aware of the unconstitu-tionality of the processes used to pass the statute untila recent court decision was issued in another casestriking down the use of similar procedures in the pas-sage of an appropriations bill. The court, however,found that the petitioners earlier had all of the infor-mation necessary to bring the action, given that the

Courts continued


On December 23, 1997, the U.S. Court of Appealsfor the Fourth Circuit issued a decision in a case chal-lenging the validity of federal regulations concerning,among other things, the performance of certain activ-ities on wetlands. The court concluded that the regu-lations are not authorized by the Clean Water Act andare therefore invalid.

BackgroundThe defendants—Interstate General Company; itsCEO and Chair, James Wilson; and St. CharlesAssociates—were involved in the development of landin Charles County, Maryland, into a planned com-munity of some 80,000 residents. The communitywas created under the New Communities Act of 1968and was being developed pursuant to a partnershipagreement with the U.S. Department of Housing andUrban Development. The project agreement provid-ed, among other things, for the preservation of 75acres of wetlands.

Despite the agreement’s provisions concerning wet-lands, the defendants were accused of performing cer-tain actions on the wetlands in violation of federallaw—including digging ditches to drain them anddepositing fill dirt and gravel in them without obtain-ing permits from the Army Corps of Engineers. Theywere subsequently prosecuted and convicted of know-ingly discharging fill material and excavated dirt intowetlands on four separate parcels without a permit, inviolation of the Clean Water Act.

Issues/HoldingThe defendants appealed their conviction challenging,among other things,

• the validity of federal regulations purporting toregulate activities that “could affect” interstatecommerce, and

• the district court’s application of the Clean WaterAct to wetlands that do not have a “direct orindirect surface connection to other waters of theUnited States.”

United States of America v. Wilson

Appellate Court Finds Certain Army CorpsRegulations re Wetlands to be Invalid

Validity of Regulations re Activities that “CouldAffect” Interstate Commerce The Clean Water Actregulates “navigable waters,” which are defined withinthe act as “the waters of the United States.” The dis-puted regulation defines “waters of the United States”in such a manner as to extend the coverage of theClean Water Act to a variety of waters that areintrastate, nonnavigable, or both, solely on the basisthat the use, degradation, or deconstruction of suchwaters could affect interstate commerce. The defen-dants challenge the authority of the regulations toextend jurisdiction of the Clean Water Act to the fourparcels in question simply because they are deemedwetlands.

In addressing the issue, the appellate court held as fol-lows:

Absent a clear indication to the contrary, weshould not lightly presume that merely by defin-ing “navigable waters” as “the waters of theUnited States” ... Congress authorized the ArmyCorps of Engineers to assert its jurisdiction insuch a sweeping and constitutionally troublingmanner. Even as a matter of statutory construc-tion, one would expect that the phrase “waters ofthe United States” when used to define thephrase “navigable waters” refers to waters which,if not navigable in fact, are at least interstate orclosely related to navigable or interstate waters.When viewed in light of its statutory authority,[the contested regulation] ... expands the statu-tory phrase “waters of the United States” beyondits definitional limit.

Accordingly, we believe that in promulgating ...[the regulation], the Army Corps of Engineersexceeded its congressional authorization underthe Clean Water Act, and that, for this reason, ...[the regulation] is invalid.


On December 15, 1997, the U.S. Supreme Courtissued an opinion that strengthens the power of trialjudges to bar controversial scientific evidence frombeing admitted during a trial. Ruling in the case of aman who claims that he got cancer from exposure tochemicals, the Court held that “abuse of discretion” isthe proper standard by which to review a districtcourt’s decision on the admission or exclusion ofexpert scientific evidence. The ruling effectively ordersappellate courts to exercise restraint before second-guessing trial judges who exclude scientific evidence.

BackgroundThe respondents, Robert Joiner and his wife, filed suitagainst General Electric, Westinghouse Electric, andMonsanto in Georgia state court after Joiner was diag-nosed with small-cell lung cancer. They claimed thatthe disease was “promoted” by Joiner’s workplaceexposure to chemical PCBs and derivative furans anddioxins that were manufactured by, or present inmaterials manufactured by, the petitioners.

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General Electric Company v. Joiner

Supreme Court: Judges Can Bar “Junk Science”The petitioners removed the case to federal court andfiled a motion for summary judgment. In response,Joiner presented the depositions of expert witnesseswho testified that PCBs, furans, and dioxins can pro-mote cancer and were likely responsible for Joiner’scondition. The district court granted summary judg-ment because it found that (1) there was no genuineissue as to whether Joiner had been exposed to furansand dioxins, and (2) the testimony of Joiner’s expertsfailed to establish a link between exposure to PCBsand small-cell lung cancer and was therefore inadmis-sible because it did not rise above “subjective belief orunsupported speculation.”

The respondents appealed the district court’s grant ofsummary judgment to the U.S. Court of Appeals forthe Eleventh Circuit. The appellate court reversed thelower court’s decision, applying “a particularly strin-gent standard of review” to hold that the district courthad erred in excluding the expert testimony.

The U.S. Supreme Court granted certiorari on thequestion of what standard an appellate court shouldapply in reviewing a trial court’s decision to admit orexclude expert testimony.

United States of America v. Wilson (continued)

Application of Act to Wetlands Not Having aSurface Connection to Other Waters The defen-dants also assert that the district court, in instructingthe jury on the relationship between wetlands andinterstate waters, improperly extended the jurisdictionof the Clean Water Act to wetlands that have no“direct or indirect surface connection” to interstatewaters.

In addressing the issue, the appellate court held as fol-lows:

The instruction intolerably stretches the ordi-nary meaning of the word “adjacent” and thephrase “waters of the United States” to includewetlands remote from any interstate or navigablewaters. The magnitude of this extension is par-ticularly highlighted when recognizing that the

Army Corps of Engineers’ statutory mandateextends not to the regulation of “wetlands adja-cent to waters of the United States,” but only tothe regulation of “waters of the United States,”and that the Corps regulation of such wetlands isbased solely on its definition of wetlands as“waters of the United States.” Furthermore, asnoted above, we should interpret the CleanWater Act in light of the constitutional difficul-ties that would arise by extending the Act’s cov-erage to waters that are connected closely to nei-ther interstate nor navigable waters, and whichdo not otherwise substantially affect interstatecommerce. It was thus error for the district courtto have instructed the jury to extend the juris-diction of the Clean Water Act to wetlands thatlack any “direct or indirect surface connection”to interstate waters, navigable waters, or inter-state commerce.

—TDL

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Arguments

The petitioners challenge the standard applied by theappellate court in reviewing the district court’s deci-sion to exclude the scientific testimony offered byrespondents’ experts. They argue that the appellatecourt should have applied the traditional “abuse ofdiscretion” standard.

The respondents agree that abuse of discretion is theproper standard, but argue that the appellate courtdid, in fact, apply such a standard in this case.According to the respondents, the phrase “particularlystringent” did not mean that the appellate court wasapplying a different standard of review, but was rathera simple acknowledgement that an appellate court canand will devote greater resources to analyzing lowercourt decisions that are dispositive of an entire suit.

Court’s Holding

The Court held that the appellate court erred inapplying an overly “stringent” standard to its review ofthe exclusion of Joiner’s experts’ testimony. In sodoing, the Court determined, the appellate court“failed to give the trial court the deference that is thehallmark of abuse of discretion review.”

In particular, the Court concluded that “abuse of dis-cretion” is the proper standard by which to review adistrict court’s decision on whether or not to admitscientific evidence and that a more intense standardmay not be applied merely because the decision deter-mines the outcome of the case.

[W]hile the Federal Rules of Evidence allow dis-trict courts to admit a somewhat broader rangeof scientific testimony ... they leave in place the“gatekeeper” role of the trial judge in screeningsuch evidence. A court of appeals applying“abuse of discretion” review to such rulings maynot categorically distinguish between ru l i n g sallowing expert testimony and rulings which dis-allow it ... [We] reject respondents’ argumentthat because the granting of summary judgmentin this case was “outcome determinative,” itshould have been subjected to a more searchingstandard of review.

—TDL

Abuse of Discretion

Abuse of discretion is a strict legal term indicatinga failure to exercise a sound, reasonable, and legaldiscretion. It does not imply intentional wrong,bad faith, or misconduct.

Abuse of discretion by a trial court is “any unrea-sonable, unconscionable and arbitrary actiontaken without proper consideration of facts andlaw pertaining to matter submitted.”

US Ecology v. USACalifornia DHS v. USA (continued from page 21)

U.S. Has Breached Contract The plaintiffs term as“frivolous” the government’s argument that even if acontract existed, it has not been breached. They assertthat Babbitt’s rescission of Lujan’s January 19, 1993,record of decision constituted a total breach of thecontract to sell Ward Valley to the state. Moreover,the plaintiffs contend that the United States has alsobreached its implied-in-fact contract to deal fairlywith the state on this issue.

—TDL

Stilp v. Hafer (continued from page 22)

They also argued that the State Treasurer cannot legal-ly disburse funds from the State Treasury unless thelaw is constitutionally passed. They asked the court todeclare Act 12 to be unconstitutionally enacted and toenjoin the respondents from enforcing any provisionsof the act or making any expenditure under its author-ity. (See LLW Notes, May 1996, pp. 18–19.)

The respondents denied that Act 12 violates thePennsylvania Constitution or that it is procedurallydefective. Moreover, they argued that the petitioners’claims are barred by the doctrine of laches. (SeeLLW Notes, August/September 1996, pp. 16-17.)

—TDL

Court Calendar

26 LLW Note February 1998

CaliforniaDepartment ofHealth Services v.Babbitt andUS Ecology v. U.S.Department of theInterior (SeeLLW Notes,March 1997,pp. 1, 16–20.)

Chester ResidentsConcerned forQuality Living v.PennsylvaniaDepartment ofEnvironmentalProtection (Seerelated story, thisissue.)

United StatesDistrict Courtfor theDistrict ofColumbia

United StatesCourt ofAppeals forthe ThirdCircuit

The United Statesfiled a motion forsummary judgmentand a memorandumof points andauthorities in sup-port thereof and inopposition to theplaintiff ’s motion forpartial summaryjudgment.

Plaintiffs filed amemorandum ofpoints and authori-ties in opposition tothe defendant’smotion for summaryjudgment and inreply to the defen-dant’s opposition tothe plaintiff ’smotion for partialsummary judgment.

The appellate courtreversed a lowercourt ruling dismiss-ing the suit for alack of intentionaldiscrimination onthe part of thePennsylvaniaDepartment ofEnvironmentalProtection andremanded the case tothe lower court forfurther considera-tion.

November 21,1997

December, 29,1997

December 30,1997

Case Name Description Court ActionDate

Seeks to compel theU.S. InteriorDepartment to trans-fer land at WardValley, California, tothe state for use in sit-ing a low-levelradioactive waste dis-posal facility and toissue the patentapproved by DOIfour years ago.

Alleges that thePennsylvaniaDepartment ofEnvironmentalProtection hasengaged in unlawfuldiscrimination underTitle VI of the 1964Civil Rights Act byconcentrating wastetreatment facilities ina predominantly blackcommunity.

Court Calendar continued



Committee toBridge the Gap v.Babbitt (SeeLLW Notes,April 1993, p. 8.)

General ElectricCo. v. Joiner (Seerelated story, thisissue.)

Santini v.ConnecticutHazardous WasteManagementService (SeeLLW Notes,October 1994,p. 9.)

United StatesDistrict Courtfor theNorthernDistrict ofCalifornia

SupremeCourt of theUnited States

ConnecticutSuperiorCourt,JudicialDistrict ofHartford/NewBritain atHartford

Plaintiffs filed amotion for a prelim-inary injunction anda memorandum ofpoints and authori-ties in support there-of.

The Supreme Courtruled that a lowercourt decision per-taining to the exclu-sion of certain scien-tific evidence can beoverruled only upona finding that thetrial judge clearlyabused his or herdiscretion.

The defendantswithdrew theirmotion for summaryjudgment.

The trial is sched-uled to begin.

December 19,1997

December 15,1997

September 18,1997

February 19,1998

Seeks to postpone theWard Valley landtransfer until allegedviolations of theNationalEnvironmental PolicyAct (NEPA) and theFederal Land Policyand Management Acthave been remedied.

Seeks to determine theproper standard bywhich to review a dis-trict court’s decisionon the admission orexclusion of expertscientific evidence.

Involves a claim thatthe service’s site desig-nation prevented theplaintiffs from com-pleting propertydevelopment.

Court Calendar continued

28 LLW Note February 1998


Stilp v. Hafer (SeeLLW Notes,Winter 1997,p. 22–23.)

United States ofAmerica v. Wilson(See related story,this issue.)

Waste ControlSpecialists, LLC v.U.S. Departmentof Energy (SeeLLW Notes,December 1997,p. 2–3.)

SupremeCourt of theCommon-wealth ofPennsylvania

United StatesCourt ofAppeals forthe FourthCircuit

United StatesCourt ofAppeals forthe FifthCircuit

Notice of Appealwas filed in theSupreme Court ofthe Commonwealthof Pennsylvania.

The court held that(1) the contestedregulations areinvalid as the ArmyCorps of Engineersexceeded its congres-sional authorizationunder the CleanWater Act, and (2)the act does notapply to wetlandsthat lack any “director indirect surfaceconnection to otherwaters of the UnitedStates.”

DOE filed (1) amotion to expeditebriefing, argument,and disposition ofthe appeal and (2) abrief appealing thedistrict court’s pre-liminary injunction.

WCS filed a briefresponding toDOE’s appeal of thedistrict court’s rul-ing.

December 18,1997

December 23,1997

December 19,1997

January 19, 1998

Challenges the legisla-tive procedures usedin Pennsylvania topass Act 12 of 1988,otherwise known asthe Low-LevelRadioactive WasteDisposal RegionalFacility Act.

Challenges (1) thevalidity of federal reg-ulations purporting toregulate activities that“could affect” inter-state commerce and(2) the application ofthe Clean Water Actto wetlands that donot have a “direct orindirect surface con-nection to otherwaters of the UnitedStates.”

Alleges that seniorDOE officials havenot carefully or rea-sonably considered aWCS proposal to dis-pose of DOE radioac-tive waste at the com-pany’s AndrewsCounty site.

International


International Nuclear RegulatorsAssociation Holds SecondMeetingIn early January, the International Nuclear RegulatorsAssociation held its second meeting on the West Coastof the United States. Top officials from nuclear regu-latory agencies in the United States, Canada, France,Germany, Japan, Spain, Sweden, and the UnitedKingdom attended the meeting, which began at theU.S. Nuclear Regulatory Commission’s West Coastoffice and included a field trip to the LawrenceLivermore National Laboratory and the proposedYucca Mountain high-level radioactive waste disposalsite in Nevada. The agenda covered many topics,including the effect that utility deregulation and otherenergy trends will have on nuclear power plants, anddiffering national approaches to regulating nuclearreactors and materials.

The association was formed at a two-day meeting inParis in May 1997. Its stated purpose, among otherthings, is “to influence and enhance nuclear safety,from the regulatory perspective, among its membersas well as worldwide.” Its members plan to meet atleast annually. NRC Chairman Shirley Ann Jacksonhas been elected to serve a two-year term as the asso-ciation’s first Chairman.

For additional background information, see LLW Notes,May/June 1997, p. 32.

—TDL

New IAEA Director AppointedAt its 41st regular session, the General Conference ofthe International Atomic Energy Agency (IAEA)approved the appointment of Mohamed ElBaradei asthe next director of the agency. ElBaradei, who cur-rently serves as Ambassador in the Egyptian ForeignService, has been a senior member of the IAEASe c retariat since 1984. He is currently AssistantDirector General for External Regulations.

—TDL

Companies Seek NRC Licenseto Import LLRW From Taiwanand CanadaTaiwan In the last year, Chem-Nuclear Systems,Alaron Corporation, and Allied Technology Grouph a ve all filed license applications with theU.S. Nuclear Regulatory Commission to import low-level radioactive waste from a nuclear power plant inTaiwan. Alaron, however, recently requested to with-draw its application without explanation by letterdated January 13, 1997. The applications of Chem-Nuclear and Allied Technology Group are still pend-ing.

The waste to be imported consists of radioactivelycontaminated condenser tubing that would be decon-taminated and recycled. The applications cover wastemanagement activities for approximately a two-yearperiod. Chem-Nuclear’s application states that thewaste would be taken to its consolidation facility inBarnwell, South Carolina, and later transferred to theManufacturing Sciences Corporation in Oak Ridge,Tennessee. Waste imported by Allied TechnologyGroup would be sent to its facility in Richland,Washington.

Canada In addition, DSSI has submitted a licenseapplication to import waste fluids from Canada;incinerate them at its industrial boiler facility inKingston, Tennessee; and then return the ash toCanada. That application is currently pending.

Regulations NRC regulations require that personsi n t e rested in importing or exporting radioactivewaste, including mixed waste, obtain a license fromthe commission. The procedures for doing so are con-tained in NRC’s import/export rule, which was pub-lished in the Fe d e ral Re g i s t e r on July 21, 1995(60 Federal Register 37,556).

—TDL


Special Feature: Environmental Justice

Chester Residents Concerned for Quality Living v. James Seif

Appellate Court Finds Private Right of Action UnderSection 602 of Title VI of the Civil Rights Act

Specifically, CRCQL alleges that since 1987 DEP hasgranted five waste facility permits for sites in Chester,while granting only two permits for sites in the rest ofDe l a w a re County. CRCQL further asserts thatChester facilities have a total permit capacity of 2.1million tons of waste per year, whereas the otherDelaware County facilities have a total permit capaci-ty of only 1,400 tons of waste per year.

DEP receives federal funding from the EPA to oper-ate the Commonwealth of Pennsylvania’s waste pro-grams pursuant to the Resource Conservation andRecovery Act and other federal regulations. Title VIand the EPA’s civil rights regulations condition thereceipt of such federal funds on DEP’s assurance ofcompliance. These regulations, in part, prohibit recip-ients of federal funding from using “criteria or meth-ods ... which have the effect of subjecting individualsto discrimination because of their race, color, nation-al origin, or sex ...”

On December 30, 1997, the U.S. Court of Appealsfor the Third Circuit reversed the dismissal of a law-suit accusing the Pe n n s y l vania De p a rtment ofEnvironmental Protection of discrimination by con-centrating waste facilities in a predominantly blackcommunity. The appellate court found that a privateright of action exists under discriminatory effect regu-lations promulgated by federal administrative agenciespursuant to section 602 of Title VI of the Civil RightsAct of 1964. It remanded the case to the U.S. DistrictCourt for the Eastern District of Pennsylvania for fur-ther proceedings in accordance with its finding,including the consideration of remaining grounds fordismissal contained in the defendants’ motion to dis-miss.

BackgroundThe Complaint Chester Residents Concerned forQuality Living (CRCQL)—a non-profit corpora-tion—and 18 individuals filed suit against thePe n n s y l vania De p a rtment of En v i ro n m e n t a lProtection (DEP) and its Secretary, James Seif, as wellas the Southeast Region of DEP and its Director,Carol Collier. The action challenges DEP’s issuance ofa permit to Soil Remediation Services, Inc. to operatea facility in the City of Chester. The plaintiffs arguethat DEP’s issuance of the permit violates section 601of Title VI of the Civil Rights Act of 1964, theEnvironmental Protection Agency’s civil rights regula-tions, and DEP’s assurance pursuant to the regulationsthat it would comply with them. The City of Chesteris located in De l a w a re County, Pe n n s y l va n i a .Approximately 65 percent of Chester’s population isblack and 32 percent is white, whereas approximately6.2 percent of Delaware County’s population is blackand 91 percent is white.

Title VI of the Civil Rights Act of 1964

Section 601: “No person in the United Statesshall, on the ground of race, color, or national ori-gin, be excluded from participation in, be deniedthe benefits of, or be subjected to discriminationunder any program or activity receiving Federalfinancial assistance.”

Section 602: “Each Federal department andagency which is empowered to extend Federalfinancial assistance to any program or activity, byway of grant, loan, or contract other than a con-tract of insurance or guaranty, is authorized anddirected to effectuate the provisions of section200d of this title with respect to such program oractivity by issuing rules, regulations, or orders ofgeneral applicability which shall be consistentwith achievement of the objectives of the statuteauthorizing the financial assistance in connectionwith which the action is taken.”


Special Feature: Environmental Justice continued

Issues and Lower Court Holding It is establishedlaw that a private right of action exists under sec-tion 601 of Title VI of the Civil Rights Act of 1964.However, this right only applies in instances of inten-tional discrimination as opposed to instances of dis-criminatory effect or disparate impact.

EPA has promulgated regulations pursuant to Section602, which section authorizes agencies that distributefederal funds to promulgate regulations implementingsection 601. EPA’s implementing regulations providein part as follows:

A recipient shall not use criteria or methods ofadministering its program which have the effectof subjecting individuals to discriminationbecause of their race, color, national origin, orsex, or have the effect of defeating or substantial-ly impairing accomplishment of the objectives ofthe program with respect to individuals of a par-ticular race, color, national origin, or sex.

While it is clear that this regulation incorporates a dis-c r i m i n a t o ry effect standard, the United St a t e sSupreme Court has validated the promulgation of reg-ulations incorporating this standard by agencies. Thequestion arises, however, as to whether a private partycan proceed against a governmental authority underthis regulatory standard, rather than under the morestringent standard required by section 601. CRCQLasserts that it can. The district court disagreed, how-ever, dismissing the plaintiffs’ action. In so doing, thecourt determined that a private right of action couldnot be maintained under a discriminatory effect regu-lation promulgated by the EPA pursuant to section602 of Title VI.

The Appellate Court’s DecisionThe appellate court applied a three-prong test todetermine whether it is appropriate to imply a privateright of action to enforce EPA’s regulations. The testrequires a court to inquire

(1) whether the agency rule is properly withinthe scope of the enabling statute;

(2) whether the statute under which the rule waspromulgated properly permits the implication ofa private right of action; and

(3) whether implying a private right of actionwill further the purpose of the enabling statute.

In so doing, the court determined that the EPA’s dis-criminatory effect regulation satisfies all three prongs.

According to the court, the first prong is clearly satis-fied pursuant to the U.S. Supreme Court’s decision inAlexander v. Choate. In that case, the Court’s unani-mous opinion makes clear that “actions having anunjustifiable disparate impact on minorities [can] bere d ressed through agency regulations designed toimplement the purposes of Title VI.”

The court found that the second prong is satisfiedbecause the legislative history provides some indica-tion of an intent to create a private right of action andbecause the implication of such a right would be con-sistent with the legislative scheme of Title VI.

In regard to the third prong, the court determinedthat “to the extent that a private right of action willincrease enforcement, the implication of that rightwill further the dual purposes of Title V I . ”Accordingly, the court found that the third prong ofthe test is also satisfied.

The court then held as follows:

Applying ... [the] three-prong test, we hold thatprivate plaintiffs may maintain an action underdiscriminatory effect regulations promulgated byfederal administrative agencies pursuant to sec-tion 602 of Title VI of the Civil Rights Act of1964.

In so holding, the court noted that although no othercourt of appeals has rendered a decision on the preciseissue presented in this appeal, the decisions of othercourts of appeals indicate support for the court’s rea-soning in this case.

Based on its holding, the court reversed the districtcourt’s decision and remanded the case for furtherproceedings, including consideration of the remaininggrounds for dismissal contained in the defendants’motion to dismiss.

For background information regarding environmentaljustice, see LLW Notes Supplement, July 1997.

—TDL

Interregional Access Agreement for Waste Management


The Interregional Access Agreement for Waste Management is intended to establish a nationally uniformapproach regarding access to treatment/processing facilities. Under the agreement, compacts and unaffiliatedstates agree not to impede the return of radioactive waste that originated in their region or state. The agreementis a legally binding contract. At its fall 1992 meeting, the LLW Forum passed a resolution stating in part that“the Low-Level Radioactive Waste Forum recommend[s] that compacts and unaffiliated states enter into theinterregional access agreement.”

Central Midwest Commission Signs AgreementOn November 4, the Central Midwest Interstate Low-Level Radioactive Waste Commission unanimouslypassed the following motion:

That the Central Midwest Interstate Low-Level Radioactive Waste Commission become a party to thenational Interregional Access Agreement for Waste Management (October 23, 1992), and that theChairman be authorized to execute any necessary documents to enter into the national agreement. TheCommission considers execution of the national agreement to be an authorization for the import of wasteinto the region for treatment and storage. The Commission does not consider the national agreement tosupersede the interregional access agreements which the Commission has previously entered and which arecurrently in effect.

—TDL

HI

AK

TX

ME

WV MD

PA

DE

CentralMidwest

Midwest

OHIN

MO

IA

WI

MN

MI

TN

VA

SCGAALMS

FLSoutheast

DC

CA

SD

ND

NJ

MA

LA

AROK

KS

NE

NV

CO

NM

RockyMountain

MT

ID

OR

WA

WY

UT

PR

NY

NH

RI

Signatories to the Interregional Access Agreement for Waste Management

by Low-Level Radioactive Waste Disposal Compact Membership

Afton Associates, Inc. for the LLW Forum • February 1998

Central

Northeast

Appalachian

Southwestern

KY

IL

NC

Texas

TexasNorthwest

AZ

CT

VT

Interregional Access Agreement for Waste Management Signatories


EntityAppalachian States Low-LevelRadioactive Waste Commission

Central Interstate Low-LevelRadioactive Waste Commission

Central Midwest Interstate Low-LevelRadioactive Waste Commission

Midwest Interstate Low-Level Radio-active Waste Compact Commission

Northeast Interstate Low-LevelRadioactive Waste Commission

Northwest Interstate Compact on Low-Level Radioactive Waste Management

Rocky Mountain Low-LevelRadioactive Waste Board

Southwestern Low-Level RadioactiveWaste Compact Commission

District of Columbia

State of Maine

Commonwealth of Massachusetts

State of Michigan

State of New York

State of Texas

State of Vermont

Date SignedApril 13, 1993

January 29, 1993

November 7, 1997

November 23, 1992

November 12, 1992

December 10, 1992

November 16, 1992

December 18, 1992

January 12, 1994

November 23, 1992

January 13, 1993

November 18, 1992

March 24, 1993

June 11, 1993

May 12, 1993

SignatoryArthur DavisChair

Greta DicusChair

Edward FordChair

Teresa HayChair

Kevin McCarthyChair

Roger StanleyChair

Jerry Griepentrog CarlinChair

Don WomeldorfExecutive Director

James MurphyAdministrator, Service Facility RegulationAdministration, Department of Consumer andRegulatory Affairs

Donald HoxieDirector, Division of Health Engineering

Carol AmickExecutive Director, Low-Level Radioactive WasteManagement Board

Dennis SchornackActing Commissioner for Low-Level RadioactiveWaste, Low-Level Radioactive Waste Authority

Eugene GleasonDeputy Commissioner for Operations,New York State Energy Office

Lawrence Jacobi, Jr.General Manager, Texas Low-Level RadioactiveWaste Disposal Authority

Diane ConradDirector, Vermont Radioactive WasteManagement Program

U.S. Department of Energy (DOE)

DOE Rejects Utility Proposal toCease Payments to HLW FundOn January 12, the U.S. Department of Energyrejected a request by 27 utilities that the departmentauthorize them to stop making payments to theNuclear Waste Fund. DOE’s rejection letter, however,repeated the department’s prior position that individ-ual utilities can petition for special relief if they canprovide proof of financial harm from having to storespent nuclear fuel themselves.

The utilities’ request had been made in response to thedepartment’s statements that it would not be able toaccept spent nuclear fuel for disposal by the statutorydeadline of January 31, 1998. As a result of DOE’sfailure to meet its deadline, spent nuclear fuel is cur-rently stored at 73 sites around the country.

Next Step What further action the utilities will takeis unclear at this time. They have already sued thedepartment in federal court. Although the court ruledthat DOE is still legally obligated to take the utilities’spent nuclear fuel, the court refused to order thedepartment to actually begin accepting waste by thestatutory deadline, finding instead that the “StandardContract” between DOE and the utilities provides apotentially adequate remedy. (See LLW Notes, Winter1997, pp. 27–29.) Conceivably, the utilities could goback to the court for further relief, or they could go tothe department’s equivalent of an administrative lawjudge.

Background The Nuclear Waste Policy Act requiresDOE to site, develop, license, and operate a deep geo-logic repository for the nuclear industry’s spent fuel.Under the terms of the act, nuclear utilities and DOEare to enter into contracts whereby the utilities agreeto make payments to the Nuclear Waste Fund to coverthe cost of the federal disposal program in exchangefor DOE’s provision of a repository for the utilities’waste. In 1983, DOE developed a “standard contract”for this purpose. The act also provides that utilitieshave the primary responsibility for the interim storageof spent fuel until it is accepted by DOE in accor-dance with the act’s provisions.

—TDL

Federal Agencies and Committees


Antinuclear and EnvironmentalGroups Seek Contempt OrderAgainst DOE and Its Officials

On January 26, a coalition of almost forty antinucle-ar and environmental groups filed a motion in federalcourt seeking an order holding the U.S. Departmentof Energy, its Secretary—Federico Peña—and othersenior agency officials in contempt for allegedly failingto honor a previous court order directing the depart-ment to complete a thorough analysis of the U.S.nuclear weapons cleanup program.

The motion specifically seeks the imprisonment ofPeña and two top deputies until DOE produces abinding schedule for preparing and issuing aProgrammatic En v i ronmental Impact St a t e m e n t(PEIS) on the agency’s Environmental Restorationand Waste Management program. It also seeks morethan $5 million in punitive fines and a penalty of$5,000 per day if DOE fails to complete the PEISwithin one year. DOE had agreed to perform thePEIS in a stipulation entered in October 1990 to set-tle a lawsuit initiated by many of the same groups cur-rently seeking the contempt order.

In addition, the motion requests an order directingDOE to withdraw its recent decisions on the WasteIsolation Pilot Plant and policies for treating and stor-ing transuranic wastes. The plaintiffs argue that suchdecisions and policies are invalid because they are notbased on a complete analysis of enviro n m e n t a limpacts and alternatives.

As of press time, the court had not ruled on themotion.

—TDL

Federal Agencies and Committees continued


Washington State Correspondence

On December 4, State of Washington Governor GaryLocke (D) and Attorney General Christine Gregoiresent a letter to U.S. Department of Energy SecretaryFederico Peña conveying their concern over “a legalissue, which, if not appropriately resolved could sig-nificantly undermine state regulation of commercialradioactive waste disposal facilities.” Citing the recentdecision of the U.S. District Court for the NorthernDistrict of Texas in Waste Control Specialists, LLC v.U.S. Department of Energy, Locke and Gregoire listedseveral potential problems with proposals being con-sidered by the department for its use of commercialfacilities absent regulatory oversight by states or theU.S. Nuclear Re g u l a t o ry Commission. (Se eLLW Notes, August/September 1997, pp. 15–17.)

We appreciate DOE efforts to reduce its cleanupcosts through competitive use of commercialwaste treatment and disposal facilities. However,the Court’s ruling in this case, if broadly inter-preted, would create a confusing, duplicative,inefficient, and potentially dangerous regulatoryenvironment for commercial radioactive wastetreatment and disposal facilities. It would clearlyjeopardize our efforts and those of other stateshosting DOE and commercial radioactive wastefacilities to put in place effective and credibleregulatory programs to protect workers, the pub-lic, and the environment. Moreover, this findingis clearly contrary to DOE’s announced inten-tion to end years of questionable “self-regula-tion” and move toward external regulation.

Locke and Gregoire concluded their letter by urgingPeña “to take whatever action is necessary and appro-priate to reaffirm DOE’s commitment to external reg-ulation and to ensure that DOE use of commercialtreatment and waste disposal facilities will not inter-fere with or jeopardize existing state and NRC regula-tory processes.”

Governor of Washington and Arkansas SenatorWeigh In On DOE Use of Commercial Facilities

Correspondence from Arkansas Senator

U.S. Senator Dale Bumpers (D-AR), the rankingminority member on the Senate Energy and NaturalResources Committee, also recently registered hisconcerns over issues related to DOE use of commer-cial facilities. In separate letters to Peña and NRCChairman Shirley Ann Jackson, Bumpers expressedapprehensions about legal and policy issues associatedwith the proposal by Waste Control Sp e c i a l i s t s’(WCS) to dispose of DOE waste absent state andNRC regulation.

Letter to Peña In a strongly worded letter datedDecember 9, Bumpers urged Peña “not to take anyaction to implement any self-regulatory scheme forWCS or any other waste disposal contractor or makeany commitments to do so” without first informingthe Energy and Natural Resources Committee.

I understand that your staff believes that theDepartment has the legal authority to imple-ment the WCS proposal. My own staff hasreached the opposite conclusion. I would appre-ciate your reviewing the enclosed memorandumand either rethinking your position or explainingto me where mine is wrong. I would also like toknow how you square the WCS proposal withcurrent efforts to bring the Department’s nucle-ar activities under NRC regulation.

While I appreciate your efforts to encouragecompetition in the Department’s waste disposalbusiness, more competition must not come atthe expense of public safety, state participation,and compliance with existing law.

Letter to Ja c k s o n Bu m p e r s’ letter to Ja c k s o nexpressed serious misgivings about the implications ofWCS’ proposal on external regulation of DOE facili-ties. Bumpers complained that the proposal is anattempt to extend DOE’s self-regulatory authority “toshield commercial low-level waste disposal firms fromNRC or agreement state licensing. Bumpers’ corre-spondence to Jackson also included the staff memo-randum referenced in the Peña letter, as well as a listof 10 questions to which he requested responses.

—TDL



U.S. DOE (continued)

Acting DOE Assistant Secretaryfor Environmental ManagementNamedOn Ja n u a ry 30, Energy Se c re t a ry Federico Pe ñ aannounced the appointment of James Owendoff asActing Assistant Se c re t a ry for En v i ro n m e n t a lManagement. Owendoff replaces Alvin Alm, whomade known his impending resignation last October.(See LLW Notes, Winter 1997, p. 20.)

Owendoff arrived at DOE in 1995 and has served ina number of senior positions, including DeputyAssistant Secretary for Environmental Restorationand Acting Principal Deputy Assistant Secretary inthe Office of Environmental Management. Previously,he served in the Office of the Deputy Under Secretaryof Defense for Environmental Security and Chief ofthe Air Force Environmental Restoration Division.Prior to those assignments, Owendoff was a career AirForce officer.

The permanent position of Assistant Secretary forEnvironmental Management requires appointment bythe President and confirmation by the U.S. Senate.

In a prepared statement, Energy Secretary FedericoPeña commented:

This is a critical time for the Office ofEn v i ronmental Management. En v i ro n m e n t a lrestoration efforts at our different sites are accel-erating, and public and Congressional expecta-tions about the quality of our cleanup efforts arehigher than ever. I am confident that Mr.Owendoff brings the right set of skills and talentsto help the Department continue to meet theseimportant goals.

—LAS

DOE Unveils $18–Billion BudgetRequest For FY 1999

On February 2, 1998, U.S. Department of EnergySecretary Federico Peña unveiled the department’s$18-billion budget request for FY 1999—approxi-mately a nine-percent increase over this year’s $16.5billion budget. According to Peña, the increase is con-centrated in three major areas:

• DOE’s various energy research and developmentprograms,

• DOE’s scientific capabilities, and

• the Comprehensive Test Ban Treaty and DOE’santi-proliferation programs.

Some areas of interest in the DOE budget are as fol-lows:

Environmental Management DOE is seeking $6.1billion for environmental management. Projects with-in this area were classified according to the depart-ment’s 2006 accelerated cleanup plan.

Privatization DOE’s privatization initiative receiveda significant boost in the budget request. DOE isrequesting $517 million for the initiative in FY 1999as opposed to $200 million this year.

Yucca Mountain DOE is seeking $380 million infunding for its civilian radioactive waste managementprogram, which includes funding for work on thep roposed commercial high-level radioactive wasterepository at Yucca Mountain, Nevada. This consti-tutes a $34-million increase over the current fundinglevel.

—TDL



In late January 1998, the U.S. Nuclear RegulatoryCommission held a prehearing conference on anapplication by Private Fuel Storage (PFS) LimitedLiability Company to construct an above-groundfacility for temporary storage of spent nuclear fuel ona Native American reservation in Tooele County,Utah. PFS is a consortium of seven nuclear utilitycompanies led by Northern States Power Company.The proposed location for the facility is on landbelonging to the Skull Valley Band of Goshutes.

Utah Governor Michael Leavitt (R) has opposed thestorage of high-level radioactive waste in the statesince 1993 and continues to do so. In December1997, Leavitt sought and received state control of theonly road leading to the proposed site on theGoshute’s reservation. Such control may give the stateleverage in blocking shipments to the site.

NRC Prehearing ConferenceThe prehearing conference, which was held in Utah,was open to the public for observation. During theconference, the licensing board heard arguments onwhether persons seeking a hearing on the applicationhave formal legal standing to do so and whether thecontentions that they are raising are admissible. Issuesto be considered by the NRC include

• the nature of each petitioner’s right to be made aparty to the proceeding pursuant to the AtomicEnergy Act;

• the nature and extent of each petitioner’s property,financial, or other interest in the proceeding; and

• the possible effect, if any, that an order entered inthe proceeding may have on each petitioner’sinterests.

U.S. Nuclear Regulatory Commission (NRC)

NRC Holds Prehearing Conference on GoshuteSpent Fuel Proposal

Utah Governor Continues Opposition to PlanIf any of the petitioners is found to have standing andto have submitted an admissible contention, the boardwill conduct a hearing. Such a hearing would includean opportunity for the submission of written publiccomments or brief oral presentations by the public.

BackgroundPrivate Fuel Storage Limited Liability Company sub-mitted its spent fuel storage application to the U.S.Nuclear Regulatory Commission on June 25, 1997.Under the terms of the application, the facility wouldhold up to 40,000 metric tons of waste in 4,000 metalcontainers.

PFS is seeking to build the facility due to the federalgovernment’s refusal to take spent nuclear fuel by early1998, as originally contemplated in the Nuclear WastePolicy Act of 1982. (See LLW Notes, April 1997, pp.26–27.) Eight utility companies, including SouthernCalifornia Edison, are members of the consortium.

Control of the Road Leading to theReservation

On December 4, 1997, in response to a request fromGovernor Leavitt, the Utah Tr a n s p o rt a t i o nCommission voted 5 to 1 to give the state control overthe only road leading to the proposed disposal site onthe Goshute reservation. Tooele County officials, whohave been negotiating with PFS, objected strongly tothe redesignation of the road. However, an attorneyfor the Goshute tribe suggested that the redesignationmay not impact the spent fuel proposal, arguing thatthe fuel rod shipments would be protected by theInterstate Commerce Act.

For additional background information, see LLW Notes,July 1997, pp. 34–35.

—TDL

In late December 1997, Envirocare of Utah PresidentCharles Judd responded to allegations of misconductand unfair business practices that had earlier beenlodged against the company by the Natural ResourcesDefense Council (NRDC). The allegations were con-tained in both a formal petition for enforcementaction filed with the U.S. Nuclear Re g u l a t o ryCommission on December 12 pursuant to section2.206 of Title 10 of the Code of Federal Regulations(10 CFR 2.206) and in a letter to the NRC Office ofthe Inspector General dated December 2. (Se eLLW Notes, December 1997, pp. 19, 21.)

NRC staff also responded to the allegations, denyingNRDC’s request for immediate action concerningEnvirocare’s NRC license by letter dated January 16,1998. NRC is, however, considering NRDC’s requestfor an investigation and for the suspension ofEnvirocare’s license pursuant to 10 CFR 2.206. Inthat vein, a notice of the petition was published in theFederal Register on January 29, 1998 (63 FederalRegister 4501).

In addition, NRC has conducted a limited review ofEn v i ro c a re’s policies, programs, and employ m e n tagreement. In so doing, the commission found thatsome of the company’s employment policies areinconsistent with federal law. Ac c o rd i n g l y, NRCrequested that Envirocare amend its policies and sub-mit them to the commission for further review.Envirocare complied with NRC’s request and submit-ted amended policies on January 21, 1998. Theamended policy is being reviewed by NRC staff.

Envirocare Responds to NRDC AllegationsOn December 23, 1997, Judd sent a letter to theNRC Inspector General responding to some of theallegations against Envirocare contained in NRDC’sletter of December 2. Judd specifically stated that hewould not address all of the NRDC’s allegations“since most of them have absolutely no merit.”



U.S. NRC (continued)

NRC Asks Envirocare to Amend its Employment PoliciesEnvirocare Issues Response to NRDC Allegations

In his letter, Judd asserted the following:

• NRDC has made the same allegations againstEnvirocare in previous letters and complaints filedwith NRC and the U.S. Department of Energy.NRDC has not contacted Envirocare directly aboutany of these claims.

• The issues raised by NRDC do not involve health,safety, the environment, or the law. Envirocare isfully regulated by both state and federal agenciesand has been closely scrutinized and audited overthe past year.

• N R D C ’s attacks against En v i ro c a re effective l ypromote the commercial interests of the company’sp r i m a ry competitor, Waste Control Sp e c i a l i s t s(WCS), and the NRDC’s allegations closely trackthose promoted by WCS.

• Contrary to NRDC’s assertions, Envirocare hasnever “admitted ... to complicity in a corruptscheme of apparent bribery or extortion inconnection with receiving its approvals ...”

• DOE determined that NRDC’s allegations,including claims related to the Na t i o n a lEnvironmental Policy Act (NEPA), were withoutmerit.

• There is no evidence suggesting that any official ofEnvirocare has ever threatened any other person,nor is there any basis in fact for NRDC’s allegationsrelating to “falsified records.”

• N R D C ’s allegations re g a rding “w h i s t l e b l owe rcomplaints made to NRC” in 1991 omit anyreference to the Utah Bureau of Radiation Control’sinvestigation into the matter or the bureau’s reportto the NRC. Envirocare has been working withN RC staff to ensure that its whistleblowe rp rotection policy meets and exceeds thecommission’s requirements.



NRC Writes to Envirocare re EmploymentPolicies and NRDC AllegationsDecember 8 Letter On December 8, 1997, CarlPaperiello—the Director of NRC’s Office of NuclearMaterial Safety and Safeguards—sent a letter to Juddconcerning NRC’s review of Envirocare’s whistleblow-er protection policy, environmental compliance pro-gram, and employment agreement. Pa p e r i e l l oexplained that the review determined that some of thecompany’s policies are inconsistent with the EnergyReorganization Act (ERA) and therefore requestedthat Envirocare amend the policies as described andsubmit the amended policies to NRC staff for furtherreview.

NRC specifically noted the following problems withEn v i ro c a re’s policies, programs, and employ m e n tagreements:

• While Envirocare’s policy affords its employeesp rotection from retaliation for providing theemployer or NRC with information about allegedviolations of state or federal environmental laws, itdoes not afford employees raising nuclear safetyconcerns these same protections.

• Envirocare’s policy appears to protect employeesonly from discrimination for notifying regulatoryofficials of “substantial” safety hazards or otherviolations of state or federal environmental laws.However, the ERA and other similar laws do notrequire that the alleged safety hazard or violation be“substantial.”

• Envirocare’s policy seems to require that employeesabstain from notifying appropriate governmentalofficials unless the employee “has not received ana p p ropriate re s p o n s e” from the company. T h eERA, howe ve r, allows employees to by p a s smanagement and refer their concerns directly togovernment officials.

• Envirocare’s environmental compliance programneeds to be expanded to include pro c e d u re sapplicable to NRC-covered activities.

• En v i ro c a re’s employment agreement containsrestrictions on the disclosure of confidential orproprietary information. NRC believes that suchrestrictions could be interpreted to preclude, inviolation of federal law, the disclosure to NRC orother governmental bodies of data in support of a

nuclear safety concern. Language must be added tothe agreement to explain what rights employeeshave under the laws, including the right to raisenuclear safety concerns or to provide nuclear safetyinformation to the NRC or other federal or stategovernment agencies.

December 31 Letter NRC followed up its December8 letter to Envirocare with another, dated December31, in which it requested additional information fromthe company to assist the commission in its review ofNRDC’s December 12 petition. Specifically, NRCrequested that Envirocare (1) respond to each of theallegations raised in the petition, and (2) notify thecommission as to whether the company plans toenforce its employment agreement against currentand former employees who have engaged, or doengage, in protected activities. If the company doesnot plan to enforce its agreement, NRC requestedthat it advise the commission of what actions, if any,it has taken or plans to take to notify employees ofthis decision.

Envirocare Responds to NRC RequestsOn January 21, 1998, Judd sent a letter to Paperielloreplying to NRC’s letters of December 8 and 31.Judd’s letter was accompanied by his affidavit, swornunder oath, and separate copies of Envirocare’s revisedwhistleblower protection policy, revised environmen-tal and nuclear safety compliance program, andrevised employment agreement.


U.S. NRC (continued)

Judd’s letter states, in part, as follows:

Envirocare encourages employees to raise andreport environmental compliance and nuclearsafety concerns. Envirocare has never threateneda current or former employee with any kind ofretaliatory or other action for advising anyone ofsuch concerns. Envirocare has had copies of theNRC’s Form 3 conspicuously posted at our siteso that employees are aware of their rights tocommunicate nuclear safety concerns. Nothingin our Em p l oyment Agreement or in ourEn v i ronmental Compliance Program wasintended to prevent, and they do not prevent, anemployee or former employee from advising anyperson, entity or agency of safety concerns atEnvirocare’s facilities or from engaging in anyprotected activities cognizable under Section 211of the Energy Reorganization Act or any otheremployee protection statute. Envirocare has notclaimed or asserted in the past, and does notintend to claim or assert in the future, that anycurrent or former employee who has engaged inany such protected activity was in violation ofthe Employment Agreement. The confidentialityprovision in our Employment Agreement wassimply intended to protect confidential businessinformation such as pricing, market analysis,trade secrets, etc.

Further, Envirocare never has taken any enforce-ment action, or threatened to take any enforce-ment action, against any employee or formeremployee, to prevent such protected activity, orto recover damages or obtain other relief as aresult of such protected activity based upon anyalleged violation of the Employment Agreementor otherwise. Nevertheless, we have amendedour Employment Agreement to insure that thereis no misunderstanding regarding the meaningof the confidentiality provision contained there-in and to specifically address your suggestionsabout providing additional awareness to employ-ees of their rights to raise nuclear safety concernsand to provide nuclear safety information toNRC officials as a part of their whistleblowerprotection.



In his letter, Judd announced that

• En v i ro c a re has pre p a red an Em p l oy m e n tA g reement Ac k n owledgement form to becompleted by all employees to make them aware ofthe meaning, intent, and coverage of theconfidentiality provision;

• Envirocare is advising all of its employees aboutclarifications to its policies and programs andproviding them with copies thereof;

• Envirocare is providing its employees with copies ofNRC’s whistleblower policy statement; and

• Envirocare is making reasonable efforts to contactpast employees to clarify the companies’ policies,programs, and agreements.

—TDL

NRC Allows Disposal of Off-Site11e.(2) Byproduct Material atNew Mexico Mill Tailings SiteNRC has approved a license amendment authorizingthe disposal of 11e.(2) byproduct material from off-site generators at the Ambrosia Lake Uranium MillTailings Site in New Mexico. The amendment, whichwas issued on May 16, 1997, limits the annual dis-posal total of byproduct material to 2.7 million cubicfeet—whether the material is produced on site orobtained from off-site generators. The amendmentalso provides that off-site 11e.(2) byproduct materialthat is disposed of at the site must be similar in phys-ical, chemical, and radiological characteristics to thewaste already there.

The Ambrosia site is operated by Quivira MiningCorporation, a subsidiary of Rio Algom Corp. and anindirect subsidiary of Rio Algom, Ltd. of Canada. Itwas originally the location of a uranium mill that hasbeen on stand-by for almost 10 years. Currently,Quivira conducts reclamation activities at the site.

On May 28, 1997, Envirocare of Utah petitionedNRC challenging the license amendment. Envirocareargued that Quivira was not required to follow thesame environmental rules. The petition was referred toan administrative law judge who subsequently rejectedit. Envirocare appealed the administrative law judge’sdecision to the commission. That appeal is pending.

—TDL

New Materials and Publications


LLW Forum

N Summary Report: Low-LevelRadioactive Waste ManagementActivities in the States andCompacts. Afton Associates, Inc.January 1998. Includes informa-tion regarding current waste man-agement; regulatory, program, andsiting responsibility; disposal tech-nology; siting; licensing; anddevelopment costs.

DM Meeting Packet: LLW Forummeeting, February 10-13, 1998.

— LLW Forum Meeting Agenda.Afton Associates, Inc.February 1998.

— LLW Forum Meetings-at-a-Glance Schedule. AftonAssociates, Inc. February1998.

— LLW Forum MeetingPreattendance List. AftonAssociates, Inc. February1998.

— Status of Technical Assistance.DOE’s National Low-LevelWaste Management Program.February 1998.

— Official Radioactive WasteManagement Policy.Environment and Energy andTransportation Committees,National Conference of StateLegislatures. November 9,1997.

— Excess Capacity for theDisposal of Low-LevelRadioactive Waste in theUnited States Means NewCompact Sites are Not Needed(Report Highlights).F. Gregory Hayden, NebraskaCommissioner, CentralInterstate Low-LevelRadioactive Waste CompactCommission. December1997. To obtain a copy ofthe full report, fax a requestto (402)472-9700. Pleaseinclude a mailing addresswith the request.

— Memo from DonWomeldorf, ExecutiveDirector, Southwestern Low-Level Radioactive WasteCommission, to low-levelradioactive waste generatorsin the southwestern regionregarding the Hayden reportand the “misleading informa-tion about the economic via-bility of the Ward Valley pro-ject.” Included as an attach-ment is an analysis of theHayden report prepared byCalifornia’s Department ofHealth Services. December23, 1997.

— Letter from Gregg Larson,Executive Director, MidwestInterstate Low-LevelRadioactive WasteCommission, to F. GregoryHayden, NebraskaCommissioner, CentralInterstate Low-LevelRadioactive Waste CompactCommission, providing com-

ments on Hayden’s report.

— Letter from Kathryn Haynes,Alternate Forum Convenor,to F. Gregory Hayden,Nebraska Commissioner,Central Interstate Low-LevelRadioactive Waste CompactCommission, correcting spe-cific statements regarding theLLW Forum in Hayden’sreport. January 29, 1998.

— NGA Policy: EnvironmentalCompliance at FederalFacilities. (NR-8.) ThisNatural Resources policy wasrevised at NGA’s 1997 annualmeeting and is effectivethrough its 1999 annualmeeting.

— Letter from Shirley AnnJackson, Chairman, NRC, toCarol Browner,Administrator,Environmental ProtectionAgency, regarding NRC’sconcerns with EPA’s guidancethat would establish protec-tive cleanup levels forradioactive contamination atComprehensiveEnvironmental Response,Compensation, and LiabilityAct of 1980 (CERCLA) sites.December 12, 1997.

P Forum ParticipantsA Alternate Forum ParticipantsE Forum Federal LiaisonsL Forum Federal Alternates

D LLW Forum Document RecipientsN LLW Notes and

Meeting Report RecipientsM Meeting Packet Recipients

Document Distribution Key

New Materials and Publications continued


States and Compacts

Central Midwest Compact/Illinois

Illinois Department of NuclearSafety 1996 Annual Survey Report.December 1997. IllinoisDepartment of Nuclear Safety.Summary of survey forms submit-ted by generators and brokers oflow-level radioactive waste inIllinois. To obtain a copy, contactVera Small of the IllinoisDepartment of Nuclear Safety at(217)524-6309.

Midwest Compact

Ohio Low-Level RadioactiveWaste Facility DevelopmentAuthority Annual Report.November 1997. Ohio Low-LevelRadioactive Waste FacilityDevelopment Authority. Includesinformation about the MidwestCompact’s resolution calling forcessation of development activi-ties, along with a financial state-ment for FY ’97. To obtain acopy, contact the MidwestCompact Commission at(612)293-0126.

Northeast Compact/Connecticut

Low-Level Radioactive WasteManagement in Connecticut-1996.December 1997. ConnecticutHazardous Waste ManagementServices, Low-Level RadioactiveWaste Program. Summary of low-level radioactive waste manage-ment by the state’s generators. Toobtain a copy, contact RonaldGingerich of the ConnecticutLow-Level Radioactive WasteProgram at (860)244-2007.

Federal Agencies and Committees

Department of Energy (DOE)

Letter from Alvin Alm,Assistant Secretary forEnvironmental Management,DOE, to Dana Mount, Chair,Southwestern Low-LevelRadioactive Waste Commission,regarding DOE’s decision not toenter into discussions regardingthe acceptance of commercial low-level radioactive waste from theSouthwestern Compact at theDOE’s federal facilities in theStates of Nevada and Washington.December 3, 1997.

Nuclear Regulatory Commission(NRC)

Letter from Carl Paperiello,Director, Office of NuclearMaterial Safety and Safeguards,NRC, to Charles Judd, President,Envirocare of Utah, Inc. request-ing that Envirocare amend itsWhistleblower Protection Policy,the Environmental ComplianceProgram that is referenced in thatpolicy, and Envirocare’sEmployment Agreement to ensurecompliance with Section 211 ofthe Energy Reorganization Act, 42U.S.C. 5851 and 10 CFR 40.7.December 8, 1997.

Letter from Carl Paperiello,Director, Office of NuclearMaterial Safety and Safeguards,NRC, to Charles Judd, President,Envirocare of Utah, Inc. request-ing Envirocare to respond to theallegations made by the NaturalResources Defense Council(NRDC) in its petition to NRCalleging that Envirocare has violat-ed Section 211 of the EnergyReorganization Act and 10 CFR19.6, 19.20 and 40.7. December31, 1997.

Letter from Charles Judd,President, Envirocare of Utah,Inc., to Carl Paperiello, Director,Office of Nuclear Material Safetyand Safeguards, stating thatEnvirocare has revised itsWhistleblower Protection Policy,Environmental and Nuclear SafetyCompliance Program andEmployment Agreement, consis-tent with NRC’s recommendationsnoted in the previously listed let-ters. January 21, 1998.

Letter from Charles Judd,President, Envirocare of Utah,Inc., to Hubert Bell, InspectorGeneral, NRC refuting, “numer-ous false and misleading claimsabout Envirocare of Utah, Inc.”made by Thomas Cochran,Natural Resources DefenseCouncil (NRDC) in a letter datedDecember 2, 1997. December23, 1997.

—RTG


Obtaining Publications

To Obtain Federal Government Informationby telephone• DOE Public Affairs/Press Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(202)586-5806

• DOE Distribution Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(202)586-9642

• DOE’s National Low-Level Waste Management Program Document Center . . . . . . . . . .(208)526-6927

• EPA Information Resources Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(202)260-5922

• GAO Document Room . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(202)512-6000

• Government Printing Office (to order entire Federal Register notices) . . . . . . . . . . . . . . .(202)512-1800

• NRC Public Document Room . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(202)634-3273

• Legislative Resource Center (to order U.S. House of Representatives documents) . . . . . . .(202)226-5200

• U.S. Senate Document Room . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(202)224-7860

by internet• EPA Listserve Network • Contact Terri Dickson at (202)260-9581 or

e-mail (leave subject blank and type help in body of message) . . . . . [email protected]

• U.S. Government Printing Office (GPO) (for the Congressional Record, Federal Register, congressional billsand other documents and access to more than70 government databases) . .http://www.gpo.gov/su_docs/

• DOE’s National Low-Level Waste Management Program, Document Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .http://199.44.46.229/radwaste/

• GAO homepage (access to reports and testimony) . . . . . . . . . . . . . . . . . . . . . . . . http://www.gao.gov/

To access a variety of documents through numerous links, visit the LLW Forum website athttp://www.afton.com/llwforum

Receiving LLW Notes by MailLLW Notes and the Summary Report: Low-Level Radioactive Waste Management Activities in the States andCompacts are distributed to state, compact, and federal officials designated by LLW Forum Participants orFederal Liaisons.

Members of the public may apply to DOE’s National Low-Level Waste Management Program at the IdahoNational Engineering and Environmental Laboratory (INEEL) to be placed on a public information mail-ing list for copies of LLW Notes and the supplemental Summary Report. Afton Associates, the LLW Forum’smanagement firm, will provide copies of these publications to INEEL. The LLW Forum will monitor dis-tribution of these documents to the general public to ensure that information is equitably distributedthroughout the states and compacts.

To be placed on a list to receive LLW Notes and the Summary Report by mail, please contact Donna Lake,Senior Administrative Specialist, INEEL at (208)526-0234. As of March 1996, back issues of both publi-cations are available from the National Technical Information Service, U.S. Department of Commerce,5285 Port Royal Road, Springfield, VA 22161, (703)487-8547.

Unaffiliated StatesDistrict of ColumbiaMassachusettsMichiganNew HampshireNew YorkPuerto RicoRhode IslandSouth Carolina •

Northeast CompactConnecticut *New Jersey *

Southeast CompactAlabamaFloridaGeorgiaMississippiNorth Carolina * TennesseeVirginia

Southwestern CompactArizonaCalifornia * North DakotaSouth Dakota

Northwest CompactAlaskaHawaiiIdahoMontanaOregonUtahWashington * •Wyoming

Rocky Mountain CompactColoradoNevadaNew Mexico

Northwest accepts RockyMountain waste as agreedbetween compacts.

Texas CompactMaineTexas * Vermont

The compact has been passedby all three states and awaitsconsent by the U.S. Congress.

The Low-Level Radioactive Waste Forum includes a representative from eachregional compact, each designated future host state of a compact *, each statewith a currently operating facility •, and each unaffiliated state.

Low-Level Radioactive Waste Disposal Compact Membership

HI

AK

TX

ME

WV MD

PA

DE

CentralMidwest

Midwest

OHIN

MO

IA

WI

MN

MI

TN

VA

SCGAALMS

FLSoutheast

DC

CA

SD

ND

NJ

MA

LA

AROK

KS

NE

NV

CO

NM

RockyMountain

MT

ID

OR

WA

WY

UT

PR

NY

NH

RI

Central

Northeast

Appalachian

Southwestern

KY

IL

NC

Texas

TexasNorthwest

AZ

CT

VT

Graphic by Afton Associates, Inc. for the LLW Forum. July 1997.

Appalachian CompactDelawareMarylandPennsylvania * West Virginia

Central CompactArkansasKansasLouisianaNebraska * Oklahoma

Central Midwest CompactIllinois * Kentucky

Midwest CompactIndianaIowaMinnesotaMissouriOhioWisconsin

llwn o t e s - llw forumllwforum.org/wp-content/uploads/2016/12/feb98notes.pdf · 2/1/1998 ·...

Documents