[Congressional Record: June 26, 1997 (Senate)]
[Page S6496-S6508]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr26jn97-121]


S. 964. A bill to direct a property conveyance in the State of California; to the Committee on Energy and Natural Resources.


Mr. MURKOWSKI. Mr. President, today I rise to introduce legislation designed to end an impasse that we've endured for far too long--the stalemate over the Ward Valley low-level radioactive waste facility and efforts to implement an important Federal law--the low level radioactive waste policy amendments.
I am doing this today because of documents that have recently come to light under the Freedom of Information Act and due to the continuing differences between the words spoken under oath by a Presidential nominee before my committee and his actions to date.
For more than 10 years, the State of California acting in complete accordance with Federal law and in cooperation with responsible Federal agencies, has been attempting to open a low-level radioactive waste repository at a Mojave Desert site in Ward Valley.
The long, tortured process costing more that $40 million has included a statewide search resulting in the selection of a virtually unpopulated desert valley; two environmental impact statements under the National Environmental Policy Act; two biological opinions under the Endangered Species Act; and judicial review including theCalifornia Supreme Court.

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From the outset, the State has been dogged by the lawsuits and protests of a small fringe group of activists.But in the end, California has met every test.Ward Valley was found to be safe, and the State issued a license containing more than 130 carefully developed safety and environmental stipulations.Consistent with its own independent evaluations, the Department of the Interior agreed to sell the land to California for the Ward Valley site in January 1993.
But shortly thereafter, the Department of the Interior abruptly reversed itself, demanding a series of discretionary studies and reviews that, 4 years later, still have no end in sight.
Specifically, the Department of the Interior asked the National Academy of Sciences to review seven technical issues related to the site.
Specifically, the Department of the Interior asked the National Academy of Sciences to review seven technical issues related to the site.
In May 1995, the Academy's report was released. The report was highly favorable to the site selection and each of the seven issues. As a consequence, Interior Secretary Babbitt indicated that he intended to transfer the site.
Two more months passed.
On July 27, 1995, the President's nominee to be the Deputy Secretary of the Interior, Mr. John Garamendi, appeared before the Energy and Natural Resources Committee and testified under oath, that the Ward Valley issue ``will be satisfactorily culminated shortly * * * and I believe it should be.''
With that testimony in mind, I recently reviewed documents made available under the Freedom of Information Act.
With the benefit of those documents and other evidence of the systematic delay fostered by the Department of the Interior to block Ward Valley, I have reached the sad conclusion that Congress must intervene to end this stalemate.
Before I go into the disturbing history of this issue and the content of the documents uncovered by the Freedom of Information Act request, some background is important.
There is a tremendous difference between low level radioactive waste and the spent fuel issue the Senate has been debating over the past 2 weeks.
Spent fuel, of course, is the high level waste from nuclear power reactors.
Low level radioactive waste, on the other hand, is composed of items such as medical gowns, biomedical wastes, filters, resins and similar wastes generated from cancer treatment, biomedical research, and other activities.
Low level radioactive waste is generated during cutting-edge research that may help us find a cure for AIDS.
Low level radioactive waste is generated from the development of new drugs and cancer therapies.
Low level radioactive waste is generated by the high tech and biotech industry in the quest for new products and services that will be at the foundation of our 21st century economy.
While it also includes waste from nuclear power production, Congress wisely placed specific limits on the levels which are a State responsibility.
When the Senate was debating the fate of high-level spent fuel, we clearly had a situation where the State of Nevada opposed a repository. The Governor of Nevada opposed it
But the low level waste issue is vastly different. Governor Wilson of California supports Ward Valley.
The State of California has been working on plans open a low level waste repository in California for the past decade.
They have done so in complete accordance with Federal law, which assigns responsibility for disposal of a specified portion of low level radioactive waste to the States.
Governor Wilson understands that thousands of jobs in California, particularly among the high-tech and biotech industries, absolutely depend on having dependable access to a safe, secure facility for low level radioactive waste.
Governor Wilson understands that countless lives might be saved through the cancer breakthrough or AIDS cure that the use of radioactive materials might bring.
Governor Wilson also understands that low level radioactive waste is currently being stored at hundreds of urban locations all across California.
It's being stored in basements and in parking lot trailers.
It's being stored in warehouses and temporary shelters.
It's on college campuses, in residential neighborhoods, and in hospitals.
And as long as the waste is in these temporary locations in populated areas, it is subject to accidental radioactive releases from fire, earthquakes, and floods.
Governor Wilson is understandably concerned about the health and safety of Californians. He is frustrated by the delays California has faced in trying to get this facility open.
So am I.
I am frustrated by the fact that the President's nominee to be the Deputy Secretary of the Interior, Mr. John Garamendi, appeared before the Energy and Natural Resources Committee on July 27, 1995 and testified under oath, that the Ward Valley issue should and would be quickly resolved.
After that testimony, seven months passed.
Nothing happened.
On February 15, 1996, Deputy Secretary Garamendi indicated that ``new information'' related to a different low-level radioactive waste site at Beatty, Nevada, required further testing at the Ward Valley site and the preparation of yet another Supplemental Environmental Impact Statement (SEIS).

Literally one day before his announcement, the Director of the U.S. Geological Survey said that linkages between the Beatty site and Ward Valley were ``too tenuous to have much scientific value.''
But the Deputy Secretary ignored the Director's scientific advice. In a public news conference, Deputy Secretary Garimendi indicated that the additional testing would take about four months, and that the preparation of a Supplemental Environmental Impact Statement (SEIS) would take about a year.
On August 5, 1996, months after we expected the testing to be complete, an official of the lab Interior selected to perform the testing said, ``Interior Department officials have yet to submit a work plan . . . on the testing they want done.''
During this same time frame, Interior Department officials were distributing documents to the public containing factually incorrect information taken verbatim from Ward Valley opponents, even though accurate information was readily available from the Department of Energy.
It now appears that Interior made no effort to check the facts with DOE with respect to the veracity of the information it was providing to the public.
Recently, the Governor of California made me aware of documents he obtained through Freedom of Information Act (FOIA) requests. These documents reveal the following:
Despite the understandable lack of radiological expertise resident in the Department of the Interior, the Department has made no effort to communicate with the federal agency with primary expertise and jurisdiction in the matter--the Nuclear Regulatory Commission.
The professional, non-political, radiological experts of the Department of Energy have indicated that: ``Interior's concern that the [Ward Valley] facility lacks an environmental monitoring system has no basis in fact;'' the Department of the Interior is attempting to subvert the National Academy of Sciences recommendations with respect to the timing of the tests and nature of the tests to be performed; the Department of the Interior has understated the costs and the time required for the conduct of the tests; and the tests the Department of the Interior has outlined will result in additional litigation regardless of their outcome.

Mr. President, these documents are plain on their face.
But they are particularly troubling since they show the vast difference between the words spoken by Mr. Garamendi in his confirmation hearing, and the actions he has taken since his confirmation.
Let's again review the facts:
Deputy Secretary Garamendi testified under oath that the Ward Valley issue would be, and should be, quickly resolved.
He then called for additional testing that did not conform to the recommendations of the National Academy of Sciences, creating a false linkage in the public's mind between the

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Beatty site and the Ward Valley site, despite the fact that his own USGS Director said that such a linkage could not be justified by the science.
Deputy Secretary Garamendi spread misinformation about the composition of the radioactive waste stream in Department press materials supplied by project opponents, making no effort to check their veracity with the Department of Energy, the Nuclear Regulatory Commission, or any other agency with expertise in such matters.
Deputy Secretary Garamendi persistently failed to get the testing underway, which he later blamed on the threats of a lawsuit that were not, in fact, made until long after the time he said the tests would be complete.
Indeed, the Department of the Interior has designed a process specifically intended to foster further delay.
Mr. President, over the past month or so there has been a new twist that is frankly the straw that breaks the camel's back.
The State of California, in its continuing efforts to achieve a compromise, has agreed to perform additional testing pursuant to the National Academy of Sciences guidelines prior to the federal land transfer.
Let me make this clear: California has always agreed to do the additional testing . . . the issue of dispute is that Interior insisted the testing be done prior to the land transfer, while California and the National Academy of Sciences said the testing would be best accomplished after the land transfer.
So California has now agreed to perform additional testing prior to the land transfer. They have clearly made efforts to compromise.
I received a letter from Deputy Secretary Garamendi, dated February 27, 1997, which exclaimed that the delays at Ward Valley have gone on long enough, and that welcomed the decision by the State of California to undertake additional testing.
When I saw that letter. I thought to myself: Finally, this issue will be resolved.
I was shocked by what happened next:
The BLM produced an administrative determination, allegedly two years old that nobody had ever seen, that will not permit California to undertake the testing that Interior insists must be undertaken prior to the land transfer! They have California in a ``Catch-22.''
BLM informed the California Department of Health Services that they could not proceed with the testing without a new permit from the BLM and yet another biological consultation with the U.S. Fish and Wildlife Service with respect to the Desert Tortoise.
The BLM based this requirement for a new permit on an ``administrative determination,'' allegedly issued two years ago, which limits surface disturbance associated with pre-construction testing. But further examination revealed several points about this document:
This old administrative determination was unknown to the California Department of Health Services, U.S. Ecology, and even the local BLM District Office until weeks ago.
The local BLM office is unable to provide any evidence that this ``administrative determination'' was provided to any of the parties whose actions it supposedly limits.
The administrative determination is absurd on its face. The U.S. Fish and Wildlife Service has determined that the 90 acres of surface disturbance associated with the construction and operation of the Ward Valley facility will not jeopardize the desert tortoise or its habitat. Moreover, under current BLM guidelines, ten acre mining operations on other BLM land would not trigger the need for a biological consultation if certain desert tortoise protection measures were incorporated into the plan submitted to BLM. Indeed, five acre mining operations would not even require the applicant to submit a tortoise protection plan for approval. Yet, it is BLM's sudden contention that less than 5 acres of surface disturbance associated with testing will require yet another full biological consultation by the U.S. Fish and Wildlife Service.
Clearly, Mr. President, this latest obstruction, and the reasons cited for it, make no sense in the context of the various other permits and administrative determinations that have been previously granted at the site.
The fact that this administrative decision suddenly surfaced in the midst of state planning to undertake the new tests is highly unusual-perhaps even worthy of investigation by the Inspector General.
Mr. President, earlier this year I asked the General Accounting Office to investigate this matter. That investigation is now underway. At this very moment, GAO auditors are reviewing documents in the District BLM office in California and at Department of Interior headquarters here in Washington.
The GAO report will not be complete until July 15, but let me simply say that their preliminary findings appear to agree with my understanding of the facts.
What we are seeing at the Department of the Interior is a blatant display of bad faith and obstructionism with regard to California's efforts to implement Federal law through development of the Ward Valley site.
I am particularly distressed by this, particularly in light of the words spoken by Mr. Garamendi at his confirmation hearing.
Mr. President, the legislation I am introducing today would convey the BLM land at Ward Valley to California as soon as a check for the fair market value of the land plus $100 is tendered to the Secretary of the Treasury, after the State of California formally tenders a promise to conduct the additional testing as outlined by the National Academy of Sciences.
It's a simple bill. California agrees to do the testing outlined by the National Academy of Sciences, California gets its site, and the taxpayer gets fair market value for the land.
I am willing to consider alternative approaches, but my bottom line is a quick and satisfactory resolution to this issue by qualified experts rather than political activists.
I am willing to entertain negotiated compromises.
I am willing to entertain alternative legislative approaches.
I am not willing to entertain further delay.
In closing, Mr. President, let me share a story that I find particularly rich in irony:
Interior Secretary Babbitt, while the Governor of Arizona, was deeply concerned about the difficulty of the Federal Government to provide for adequate low-level radioactive waste disposal sites. He was asked by the National Governors' Association to chair a task force to look into the problem.
The Babbitt task force recommended that the responsibility for lowlevel radioactive waste management be given to the States. In 1981, Governor Babbitt wrote that ``the siting of a low level nuclear waste facility involves primarily state and local issues that are best resolved at the government level closest to those affected.''
There was another Governor at the time who was active in the National Governor's Association and supported this approach: The Governor of Arkansas. His name was Bill Clinton.
Congress listened to these Governors, and passed the Low Level Radioactive Waste Policy Act which gave the States the responsibility for low level radioactive waste management.
California is the first State to license a facility under the Low Level Radioactive Waste Policy Act.
And who are the Federal authorities who are today frustrating California's attempt to follow the law and open its site?
None other than Mr. Babbitt and his Deputy at the Department of the Interior, himself a former California state official.
What an irony that former State officials would declare a State unworthy of trust in carrying out its congressionally assigned duties and responsibilities.
What a difference a few years in Washington can make.