Environment, Energy and Transportation Program

Low-Level Radioactive Waste Legislative Activity Update

July 1999

By L. Cheryl Runyon, Senior Fellow, Environment, Energy and Transportation Program (303) 830-2200

Low-level radioactive waste has been a point of discussion during 1999 in several key state legislatures, the courts and Congress. The following is a brief summary of state legislative and judicial activity.

Contents

South Carolina

On June 10, South Carolina Governor Jim Hodges created the Nuclear Task Force to provide the legislature with a plan for ending the state's role as host to the country's low-level radioactive waste, while ensuring that in-state generators' disposal needs are met.1 Former U.S. Congressman Butler Derrick will chair the panel which consists of four state representatives, four state senators and five at-large members who will represent nuclear waste generators and environmental groups. Task force members include former State Representative Harriett Keyserling; Belton Ziegler of SCANA Corp.; attorney Benjamin Johnson; Dr. Steven Glassman; state senators John Courson, Bradley Hutto, Phil Leventis and Thomas Moore; and state representatives Lonnie Hosie, Joseph Neal, Lynn Seithel and Joel Lourie.

The objectives of the task force are to " ... provide the people of South Carolina and the South Carolina General Assembly with a road map to discontinuance of South Carolina's role as the nation's nuclear dumping ground and to recommend actions to ensure that future disposal needs of South Carolina's low-level radioactive waste generators are met." The final report and recommendations about an alternative approach are to be submitted by November 1.

Governor Hodges also created the South Carolina Compact Delegation that will serve as a subcommittee to the task force. The delegation will meet with representatives of regional nuclear waste disposal compacts, other state officials and other parties to determine the terms under which the state's interest can be served through affiliation with a regional compact. The delegation will consist of Congressman Derrick and one task force member each from the House and the Senate; they will submit their findings to the full task force by September 15.

Other options that Governor Hodges is said to be considering include:

• Allow the Barnwell site to remain open and accept waste on a nationwide basis, but tax the facility based on curies accepted rather than by waste volume;
• Enter a compact; and
• Close Barnwell to all generators and waste from outside South Carolina.

If South Carolina did rejoin a compact, the state could close the commercial Barnwell low-level radioactive waste disposal facility to generators from states outside the compact. Under the compact clause in the U.S. Constitution, a state may limit access to its disposal facility and not violate the commerce clause if it is a member of a regional compact.2

In his inaugural state-of-the-state address, Governor Hodges expressed his opinion that South Carolina should not have left the Southeast Low-Level Radioactive Waste Compact to reopen Barnwell to generators across the country. (Editor's note: The state currently imposes a $235 per cubic foot tax on each cubic foot of low-level radioactive waste disposed at the Barnwell facility. The revenues are used for the Children's Education Endowment.) Hodges believes that providing access to Barnwell discouraged other regions in the country from handling their own waste.

Several South Carolina state legislators sponsored bills during the 1999 session to address the continuing operation of the Barnwell low-level radioactive waste disposal facility, which is operated by Chem-Nuclear Inc.

Senators Phil Leventis, John Courson and eight other senators sponsored S 298, which would have reenacted the Southeast Low-Level Radioactive Waste Compact for the state. A companion bill (H 3586) was filed by Representative James Smith. H 3245 (Sheheen) prohibited the disposal in South Carolina of low-level radioactive waste from other states. H 3869, also sponsored by Representative James Smith, established the Low-Level Radioactive Waste Assistance Fund to help South Carolina generators defray the costs of storing, transporting and disposing of waste. The bill also provides funding for education and for assistance to Barnwell County. None of the bills were reported out of committee before the South Carolina legislature adjourned on June 3.

The South Carolina Department of Health and Environmental Control has determined that the potential remaining capacity for disposal at the Barnwell facility is approximately only 3.2 million cubic feet-one-half of previous estimates-and approximately 10 years worth of capacity based on current disposal volumes. The state reevaluated the unused acreage at the site and determined that 17.4 acres are not suitable for low-level radioactive waste disposal due to shallow groundwater levels and other geohydrological conditions. Some 16.6 acres (or 3,172,010 cubic feet) remain potentially suitable for disposal.

North Carolina

Meanwhile, the Southeast Compact Commission has notified Governor Jim Hunt (N.C.) that the state of North Carolina has not met its legal obligations as the host state for a low-level radioactive waste disposal facility. The compact wants North Carolina to submit a written plan and schedule for returning to compliance with compact law and, ultimately, providing for disposal. Development of a low-level radioactive waste disposal facility in North Carolina has been delayed since December 1997 when the North Carolina Low-Level Radioactive Waste Authority began a shutdown of the project after a funding dispute with the commission. Generators and the commission have provided some $80 million for site development during the past 11 years. North Carolina also has spent about $32 million on the disposal project.

The authority has sent a proposal to the state legislature to develop a hybrid "decay in storage" and disposal complex. Under this plan, the authority and its contractors would build a long-term decay in storage facility, which is estimated to cost substantially less than a permanent disposal facility. Revenues from operating this facility would finance the construction of a smaller disposal facility at the same site. The authority also is seeking a $10 million appropriation from the legislature to cover a funding shortfall in completing its licensing work plan that will be submitted with the authority's license application for the disposal facility. The authority estimates a decay in storage facility could be completed in 38 months, but that 24 months would be required for the preceding state rulemaking process. The authority is seeking legislative intervention to expedite the regulatory process.

The authority also is recommending that the legislature require the following commitments from the compact commission:

• All member states will not withdraw from the compact prior to starting construction of the decay in storage facility;
• The compact commission must commit unreserved funds to the decay in storage licensing efforts; and
• The compact commission must adopt rules to disallow the export of waste for storage or disposal or give the host state veto power over export after the decay in storage facility has opened.

Texas

The Texas Natural Resources Conservation Commission (TNRCC) in October 1998 denied the license application for the proposed disposal facility at Sierra Blanca, in west Texas. TNRCC based its decision on the grounds that the Texas Low-Level Radioactive Waste Disposal Authority had failed to adequately analyze the potential risk of an earthquake fault, as well as the socioeconomic effects on the host community. TNRCC's denial of the license led to the introduction of several bills in the Legislature.

HB 674 (Gallego) would allow the authority to contract with a private person or company to develop, maintain and operate a low-level radioactive waste disposal site. Ownership of the facility would shift to the state after the TNRCC issues a license. The bill was left pending in committee. Gallego-from Alpine, Texas-represents Sierra Blanca and the Hudspeth County area where the authority sought permission to locate and operate a low-level radioactive waste disposal facility for use by Texas, Maine and Vermont generators.

Representative Warren Chisum introduced HB 1910 that would allow the state to:

• Provide the option of an assured isolation* (interim) storage facility or a disposal facility for the Texas-Maine-Vermont regional compact;
• Change the name of the Texas Low-Level Radioactive Waste Disposal Authority to the Texas Low-Level Radioactive Waste Management Authority;
• Provide that a private company can operate a storage or disposal facility under a contract from the authority;
• Allow the siting of either an assured isolation or disposal facility in areas of the state other than Hudspeth County (Sierra Blanca area) but establish a 62-mile exclusion zone along the border with Mexico and prohibit siting any facility in an area that annually receives more than 26 inches of rainfall.
• Grant the Texas Department of Health sole responsibility to license an assured isolation facility;
• Direct the authority to take title and liability to low-level radioactive waste upon receipt at a facility; and
• Establish a volunteer county process with preference given to counties that have passed a referendum that favors siting a facility.

This version of the bill passed the House of Representatives during the 1999 session. The Senate Natural Resources Committee passed a substitute version of the bill sponsored by Senator J.E. "Buster" Brown. Although both versions would allow a private company to build and operate the disposal facility, the Brown version eliminated the authority that would have both held the license for the facility and overseen the private company operating it under the Chisum bill. There was concern from observers that, without state oversight, the facility operators would accept waste both from commercial generators and the U.S. Department of Energy (DOE). The Brown bill also deleted the "local option" that would allow area residents to vote on whether they wished to host the disposal facility in their county. Incentive payments also were deleted.

The Brown bill was supported by Waste Control Specialists, an Andrews County, Texas, hazardous waste treatment and disposal company that is seeking to operate both a commercial low-level radioactive waste disposal facility and a site for disposal of Department of Energy-generated low-level radioactive waste. Another waste company, Envirocare of Texas, supported the Chisum bill. The bill was left pending in the Senate Natural Resources Committee when the session adjourned in late May. The Texas Legislature meets biennially and, barring a special session, will not return until January 2001.

During the closing hours of the 1999 legislative session, Senator J.E. "Buster" Brown was successful in abolishing the Texas Low-Level Radioactive Waste Authority, effective Sept. 1, 1999. When Representative Warren Chisum stopped further action on the low-level waste bill, Brown introduced an amendment in conference committee that abolished the authority. The amended legislation affected several state agencies. Brown refused to remove the amendment and the bill was approved-with the amendment-by both houses.

Responsibility for low-level radioactive waste management now rests with the Texas Natural Resources Conservation Commission, the organization that denied the authority's license application for the Sierra Blanca (Hudspeth County) site for a disposal facility.

In the meantime, Texas Attorney General John Cornyn has written to Texas legislative leaders that the state cannot legally prohibit private disposal companies from contracting with the U.S. Department of Energy to dispose of defense-generated low-level radioactive waste. Cornyn asserts in his letter to Rep. Gary Walker, chair of the House Land and Resource Management Committee, that such a law would violate both the commerce and supremacy clauses of the U.S. Constitution. The attorney general does believe, however, that the current state law that prevents private companies from holding low-level radioactive waste disposal licenses is constitutional. That law, plus current DOE policy to send its waste only to licensed private disposal facilities, has been effective in keeping DOE waste out of the state.

Walker had written to the attorney general about both disposal of DOE waste and whether an assured isolation facility would satisfy the state's obligation under its compact with Maine and Vermont. On this issue, Cornyn replied that assured isolation would meet the obligation to manage the waste and provide for disposal, but would not meet the state's obligation to permanently dispose of the waste. His opinion does concede that assured isolation ultimately might result in the permanent disposal of waste at the same facility. Cornyn relies on a DOE study of the assured isolation concept in asserting that " . . .a facility could be converted to a permanent disposal facility after the waste has decayed to a level where it no longer needs to be monitored. This could be done by covering the facility with earth."

Waste Control Specialists (WCS) has signed low-level radioactive waste disposal contracts with Texas Utilities and STP Nuclear Operating Co. to guarantee disposal capacity for the companies at a cost of approximately $50 per cubic foot. Disposal is dependent upon the state Legislature changing the law that restricts the siting of a low-level radioactive waste disposal facility to Hudspeth County and allows only the Texas Low-Level Radioactive Waste Authority to operate the disposal facility. STP believes the company could save $1 million annually in low-level radioactive waste disposal costs; the company currently pays $666 per cubic foot to dispose of waste at the Barnwell, S.C., facility. Texas Utility also calculates a savings of $500,000 per year with a viable WCS contract.

Maine

The Legislature passed and the governor signed LD 1516 into law as public law 366. This legislation establishes a permit requirement for the disposal in Maine of decommissioning materials from a nuclear power plant. The bill also requires notice to any municipality in which it is proposed to dispose of decommissioning materials. Maine Yankee currently is decommissioning its nuclear power plant at Wiscasset, Maine.

Nebraska

The state is the defendant in several court actions. In December 1998 the state departments of Environmental Quality and Health and Human Services denied US Ecology's license application for a proposed low-level radioactive waste disposal facility in Boyd County on the grounds that it posed a threat of groundwater contamination, and that US Ecology (and its parent company) lacked sufficient capital to fund facility construction. US Ecology's initial license application filing was in July 1990; the cost of the failed effort to locate a disposal facility in Boyd County has been calculated at $91 million.

On January 14, US Ecology and the Central Interstate Compact Commission-with the support of major low-level radioactive waste generators from the member states-appealed Nebraska's denial of the license application. A utility consortium (Entergy Arkansas, Entergy Gulf States, Entergy Louisiana, Wolf Creek Nuclear Operating Corp. and Omaha Public Power District) also has filed suit in federal district court and state court on the grounds that the state agencies "unreasonably delayed" the license application review process for the Boyd County site. The utilities sought a federal injunction to bar the state from further involvement in the license review process. The companies are seeking a refund of a portion of the $91 million that has been invested in the disposal project since 1990. The utilities also allege that former Governor Ben Nelson " ... improperly interfered with, influenced and directed license-review activities by publicly disparaging the selected site on technical grounds while technical review of the site was ... under way."

On April 15, the U.S. District Court issued a preliminary injunction against Nebraska, extending the temporary restraining order granted March 8 and preventing the state from holding a contested hearing about the license denial. The state also was prevented from collecting any funds-including federal rebate money-from the regional utilities, the compact or US Ecology. The judge based his decision on the fact that the state took eight years to deny the license application, at cost of several million dollars to the applicants. The court noted that the state now wants more money from the plaintiffs to defend the lawsuit and to pay for the administrative hearing on the appeal. The judge directed the state to pay for its own defense and stayed the state administrative hearing until the fundamental question can be answered about whether the state exercised good faith when dealing with the application.

Meanwhile, the state Legislature received a report from the Arent, Fox law firm-located in Washington, D.C.-that the host state could withdraw from the Central Interstate Low-Level Radioactive Waste Compact and would be liable for no more than the $25,000 annual membership fee until the withdrawal becomes final in five years. In response, Senator Cap Dierks sponsored LB 530, a bill that required Nebraska to secede from the Central Interstate Compact and to repeal the compact legislation. The unicameral Legislature approved the bill and Governor Mike Johanns signed it into law on May 12; the new law is effective August 29. Under an amendment to the original bill, withdrawal from the compact would not take effect until five years from the date that the other governors in the compact are notified in writing. The compact member states already had voted to disband the commission in all but name; the number of staff was reduced and the executive director position was eliminated several months ago.

New Jersey and Connecticut

These two states-the members of the Northeast Interstate Low-Level Radioactive Waste Compact Commission-will not resume the siting process for a low-level radioactive waste disposal facility, according to the compact's annual report.3 The compact's decision to suspend the siting process is based upon the availability of the Barnwell, S.C., and Clive, Utah (Envirocare), disposal facilities and the generators' volume reduction of low-level radioactive waste. The Connecticut Hazardous Waste Management Services is continuing to explore the possibility of assured isolation storage of low-level radioactive waste as an alternative to a traditional disposal facility. New Jersey will continue to provide public education about low-level radioactive waste and to monitor national disposal alternatives.

Connecticut has released an analysis of legal issues associated with the development of an assured long-term storage facility. The report concludes that the legal issues are complex, but that a storage facility could be established. The issues addressed in the report include:

• Whether assured storage meets the requirements of existing law;
• Whether Connecticut would lose its authority to exclude out-of-state waste if it sited an assured storage facility;
• Whether the existing state regulatory authority would permit an application for approval of an assured isolation facility;
• The effect that assured isolation would have upon liability concerns;
• Whether assured isolation would trigger the National Environmental Policy Act and Connecticut Environmental Policy and Protection Acts and their regulatory requirements;
• Whether assured isolation may be financed with existing resources such as the low-level radioactive waste fund.

The legal analysis compares assured isolation with language in the federal Low-Level Radioactive Waste Policy Amendments Act that requires compacts to provide disposal (defined as a permanent situation). The attorney determines that if " ... isolation is the best and only practical means of dealing with low-level waste, it will satisfy the statute's requirement of providing for disposal." The attorney is concerned about the permanent requirement of the act. The attorney also raises the issue of whether a host state can invoke the compact exclusionary authority provided for in the federal act.4

Utah

Representative Melvin Brown filed HB 324, which would regulate facilities that process radioactive source material. A commercial facility that transfers, stores, decays in storage, treats or disposes of radioactive materials would be required to obtain a groundwater discharge permit from the state Division of Water Quality. Commercial low-level radioactive waste facilities would be required to meet siting criteria established by board rule, not this legislation. The bill passed the House, but died in the Senate.

The former director of the Utah Bureau of Radiation Control, Larry Anderson, was indicted and faces trial on six federal charges of extortion, mail fraud, tax evasion and fraud for allegedly using his governmental position to obtain $600,000 and other property from Khosrow Semnani, the president of Envirocare of Utah. At the time Semnani made the extortion payments to Anderson, Envirocare had a radioactive waste disposal license application pending before the state agency. The extortion scheme was exposed when Anderson sued Semnani for additional payments. Semnani pleaded guilty to a misdemeanor charge of assisting Anderson to file false tax returns and was fined $100,000 by the U.S. District Court in 1998. Conviction of Anderson on all counts would result in a prison sentence and fine.

California

The California and US Ecology federal lawsuit that sought the transfer of the Ward Valley, Calif., site from the U.S. Department of Interior to the plaintiffs was denied by the U. S. District Court for the District of Columbia on March 31. The land is held by the Bureau of Land Management; US Ecology made payment to the department to transfer the land to the state. Former Bush administration Secretary of Interior Manuel Lujan had attempted to complete the land transfer; the Clinton administration has delayed the land transfer for a number of reasons. The court determined that two issues must be answered to respond to the transfer request-whether Secretary of Interior Bruce Babbitt's decision to rescind the Lujan sale of Ward Valley to the state was arbitrary and capricious under the Administrative Procedure Act; and whether the plaintiffs were entitled to mandamus relief (a court order that commands a public official to perform a ministerial duty). The court determined that it had to give deference to the agency and its actions; the judge also noted that no regulations precluded the secretary of the interior from withdrawing the land transfer after it had been issued. The judge reviewed the legal history of the Ward Valley site and determined that Lujan was under a temporary restraining order to prevent the land transfer when he issued his decision; therefore, Babbitt's decision to withdraw the transfer was valid. In regard to the mandamus order, the court determined that the Lujan record of decision did not give the state or US Ecology a clear right to the land patent, nor did it require Babbitt to deliver the patent.

Governor Gray Davis (Calif.) has decided not to pursue an appeal of the decision. He wants the state to find alternatives that are both environmentally sound and make good business sense. Governor Davis has asked University of California President Richard Atkinson to chair an advisory group to develop workable alternatives to low-level radioactive waste disposal. The advisory group will include academic, scientific, environmental and biotechnology experts, plus representatives from the utilities industry and state agencies.

A separate lawsuit in which the state and US Ecology are seeking financial relief for breach of contract claims related to the land transfer remains pending before the U.S. Court of Federal Claims.

The California Radioactive Materials Management (Cal Rad) Forum has taken the position that the court decision does not annul California's legal obligation to provide disposal capacity to compact generators. Alan Pasternak, technical director of the Cal Rad Forum, noted that the court's ruling does not prohibit the Department of Interior from transferring the land to the state of California; rather the judge simply declined to order the federal government to complete the transfer. Don Wolmendorf, executive director of the Southwestern Low-Level Radioactive Waste Commission, has stated that the Ward Valley site no longer is a viable candidate to host the facility.

Meanwhile, Interior Secretary Bruce Babbitt has indicated in correspondence that he would prefer to find an alternate site to Ward Valley to host the low-level radioactive waste disposal facility. Babbitt stated in a March 12 letter, "I believe it would be in the best interest of the state and federal governments, the public, the biotechnology industry, and US Ecology to explore alternatives to the proposed land transfer which would resolve the situation and potentially settle the pending legislation."

The commission on June 29 adopted a reduced budget for the remainder of the calendar year. The commission had operated for several years using state of California funds until it could assess surcharges on disposal at the planned disposal facility at Ward Valley. However, the California legislature's termination of funding for the state's low-level radioactive waste program in the fiscal year 2000 budget eliminated support for the commission. Governor Gray Davis signed the budget on June 29. The commission's revised budget will provide the minimum level of funding for legally required activities, including an annual meeting, preparation of an annual report and action on petitions to export low-level radioactive waste for disposal through Dec. 31, 1999. The commission also will share information through its web site but will not arrange workshops or send staff to other organizations' meetings. No funding mechanism exists for operations in 2000; the commission will seek federal or state grants. The commission had notified its generators that it may not be able to authorize was exports after December 31.

Illinois

The Illinois Department of Nuclear Safety (IDNS) has proposed opening a centralized interim storage facility for generators in the Central Midwest Compact (Illinois and Kentucky) should the Barnwell, S.C., low-level radioactive waste disposal facility close to generators outside the Southeast Compact. IDNS director Thomas Ortciger believes that a temporary facility would not have to comply with state siting requirements for a disposal facility, and would need to comply only with normal siting standards for radioactive materials licensees. Components of a proposed temporary facility would include a waste receipt and inspection facility, temporary storage for waste pending shipment for processing, longer-term storage for waste pending disposal and facilities to store waste for decay. Waste volumes generated in compact states range from 230,000 cubic feet per year to 350,000 cubic feet per year. IDNS would require 30 acres to 40 acres of land for the facility. One benefit of an IDNS operation would be that generators would not have to develop and build (and license) 80 to 100 on-site waste storage facilities across Illinois and Kentucky.

GAO Study

The U.S. General Accounting Office (GAO) is preparing a report for the Senate Energy and Natural Resources Committee about the status of waste disposal compacts and the efforts the compacts are making to develop low-level radioactive waste disposal sites and generator access to disposal capacity. Toward this end, GAO has gathered information from DOE about waste disposal volumes at available disposal sites. GAO has visited operating disposal facilities at Barnwell, S.C.; Richland, Wash.; and Clive, Utah. GAO also has visited the Waste Control Specialists and Envirocare of Texas properties in Andrews County, Texas, and has met with representatives of state governments in North Carolina, South Carolina, Texas and Washington. GAO also has met with representatives of the Southeast and Northwest compacts, the Nuclear Regulatory Commission and the Department of Energy's Office of Environmental Management regarding low-level radioactive waste issues. The report is expected to be submitted to the committee during summer 1999. GAO does not expect to make recommendations regarding a particular course of action. GAO's objective will be to discuss the various options, including leaving the current system in place. No Senate committee hearings regarding low-level radioactive waste disposal have been scheduled at this point.

NCSL Reports

The National Conference of State Legislatures' Low-Level Radioactive Waste Working Group hosted a national low-level radioactive waste summit April 9 in Jacksonville, Fla. The summit raised and discussed four options about how to resolve the low-level radioactive waste disposal issue. Copies of the summit notes are available from Jeff Dale or Cheryl Runyon in the NCSL Denver office (1560 Broadway, Suite 700, Denver, Colorado 80202; 303/830-2200; or jeff.dale@ncsl.org or cheryl.runyon@ncsl.org); or through the NCSL Internet site (www.ncsl.org). The working group will meet on July 25-during the 1999 NCSL Annual Meeting in Indianapolis, Ind.-to discuss the results of the April summit and to determine the next steps to develop suggestions to resolve the impasse over siting disposal facilities.

On a related note, NCSL also is publishing a report, Decommissioning of Nuclear Power Plants and the Effect of Utility Restructuring, by L. Cheryl Runyon and Eileen Doherty, in July. Copies are available from the NCSL Marketing Department, 1560 Broadway, Suite 700, Denver, Colorado 80202, (303) 830-2200. The executive summary of the report is available on line at www.ncsl.org.

Notes

1. South Carolina Executive Order 99-26, June 10, 1999.
2. Matthew Sundeen and L. Cheryl Runyon. "Interstate Compacts and Administrative Agreements" State Legislative Report 23, no. 8 (Denver, Colo.: National Conference of State Legislatures, March 1998).
3. Northeast Interstate Low-Level Radioactive Waste Commission, 1998 Annual Report (Glastonbury, Conn.: Northeast Interstate Low-Level Radioactive Waste Commission).
4. Frank H. Santoro. Assured Isolation Legal Study (Draft) (Hartford, Conn.: Connecticut Low-Level Radioactive Waste Program, March 1999).