Environment News Service
4 May 2000
Ward Valley Nuclear Waste Contractor Sues California
SAN DIEGO, California, May 3, 2000 (ENS) - The controversial Ward Valley low level radioactive waste dump proposal, declared dead and buried by all but its most fervent supporters, is still breathing. US Ecology, Inc., the company that proposed to construct the disposal site in California's Mojave desert, filed suit today against the state of California for damages stemming from the abandonment of the site.Jack Lemley, chairman, chief executive officer and president of American Ecology Corporation announced today that its subsidiary US Ecology, Inc. is suing the State of California, Governor Gray Davis, a Democrat, and the director of the state Department of Health Services for more than $162 million in monetary damages the company says it suffered due to the state's abandonment of the Ward Valley disposal site.
The land on which the nuclear disposal site would have been located is owned by the federal government, which has declined to transfer ownership of the land to the state of California.
US Ecology is also seeking a legal order requiring California to resume and complete steps to purchase the disposal site, located about 20 miles west of Needles.
"It is clear that California has abandoned its duty to develop this safe, environmentally sound disposal facility as required by state and federal laws and the state's contractual relationship with US Ecology," Lemley said. "The real tragedy is that radioactive waste continues to pile up in California communities while state officials bury their heads in the sand and ignore the law."
The suit was filed in Superior Court for the County of San Diego. California is required by law to build a disposal site for low level radioactive waste from commercial and research reactors, medical facilities and laboratories, produced in California, Arizona, North Dakota and South Dakota. These states are members of a cooperative agreement called the Southwestern Low-Level Waste Disposal Compact. In 1985, a private developer - US Ecology - was selected to locate and license the site using its own funds on a reimbursable basis.
US Ecology says it has also paid annual $250,000 license fees and covered the cost of various contractors hired by the state to assist it in scrutinizing the project.
In 1993, US Ecology obtained a license for the disposal site from the California Department of Health Services, which it continues to hold. The state successfully defended the license against challenges in court and, until last year, worked actively to obtain the site from the federal government.
"Since Governor Davis took office, the state has moved systematically to dismantle years of careful progress to solve a serious public health problem," said Lemley. "This abrupt policy rreversal and the state's refusal to proceed with acquisition of the Ward Valley site leaves us no choice but to seek economic recovery and a court order that California meet its present obligations."
Governor Davis expressed his position in a recent interview published in the "Save Ward Valley News." "Ward Valley as a site is a dead issue because the federal government won't sell us the land," the governor said. "I think we have a responsibility to find a place for the waste generated by biotechnology, and our universities, and our hospitals. That waste has a very short shelf life and represents maybe 8-to-10 percent, at most, of the total low-level nuclear waste. But, because we have a high-tech economy, and because we are leaders in biotechnology, I don't think it's right that we get the benefits of all that and just ship our nuclear garbage someplace else."
Governor Davis has established a taskforce to see if there is some other site besides Ward Valley anywhere in California to dump the nuclear waste.
The company's claim includes recovery of costs incurred since 1985, plus interest and future lost profits for the intended 30 years of waste burial.
"We believe our case is strong and intend to pursue this legal action with vigor," Lemley said.
Last week, US Ecology filed the opening brief in its appeal of a federal District Court ruling on the delayed Ward Valley land sale.
In March, the U.S. Court of Federal Claims dismissed one of the two remaining legal arguments supporting the creation of a radioactive waste dump in Ward Valley. Judge Robert Hodges said an eleventh hour land transfer by the George Bush administration in January 1993 violated a prior restraining order, rendering the transfer void.
The federal Bureau of Land Management (BLM) owns the 1,000 acre parcel on which the planned dump would be built. In 1996, Interior Secretary Bruce Babbitt overturned his predecessor's decision to transfer the land to California for use as a nuclear waste dump.
California's governor at the time, Republican Pete Wilson, and US Ecology sued the Department of Interior in 1997, saying Babbitt's action violated the Administrative Procedures Act. In 1999, S. District Court Emmet Sullivan ruled against the dump proponents and in favor of the Interior Department and environmentalists who had joined the case.
"We believe the Interior Department has an ongoing obligation to convey the property to California, and that California has a present duty to demand that they do so," Lemley said. "US Ecology is ready and able to build and operate the Ward Valley site consistent with our existing license and the law."
Oral arguments in US Ecology's appeal are scheduled in the U.S. Court of Appeals for the District of Columbia Circuit this September.
The project would bury low level radioactive wastes in shallow, unlined trenches. Native American tribes, environmental groups and nuclear activists have fought against the project for years, saying the wastes could contaminate surface and groundwater, including the Colorado River, which provides drinking water for much of southern California, Nevada and Arizona.
The project could also threaten habitat for the California desert tortoise and other at risk species.
Other US Ecology nuclear waste sites in Washington, Kentucky, Illinois and Nevada have been plagued with leaks and other problems. The company's MaxeyFalts, Kentucky facility was put on the U.S. Environmental Protection Agency's Superfund list of most polluted sites after plutonium and other radioactive wastes were discovered leaking from the facility.
Radioactive waste producers, including California universities, hospitals and industries, support the planned Ward Valley dump, and many representatives from these groups sat on a panel appointed last year by Governor Davis to explore alternatives to Ward Valley. The panel was widely criticized for containing too many radioactive waste generators and too few environmentalists. American Ecology Corporation, through its subsidiaries, provides low level radioactive, hazardous and non-hazardous waste services to commercial and government customers throughout the U.S. Headquartered in Boise, Idaho, the company is the oldest radioactive and hazardous waste services company in the nation.