Glowing Future Dims for Dump 

Revelations undermine state claim to nuke site

Wednesday, Jun 3 1998
It appears that the decade-old battle by California authorities to acquire Ward Valley, the proposed low-level nuclear-waste dump near Needles, may now finally be over - scuttled by Pete Wilson's own frantic effort to push the project forward.

The project has been at a standstill for years, most recently because opponents, armed with new scientific studies of the site, persuaded the United States Department of the Interior to conduct further tests to determine if nuclear waste buried in unlined trenches 20 miles from the Colorado River might leak into the water supply for millions in California, Arizona and Mexico. That study has been under way for the past two years, and it was widely believed that the results would determine the fate of the Mojave Desert facility.

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Not so. Late last week, Interior's Bureau of Land Management (BLM), which currently owns Ward Valley, ruled that the California Department of Health Services (DHS) "lacks authority and is ineligible to purchase the land." Since the DHS must buy the land from the federal government in order for Ward Valley to be operated under California license, the deal is off. Perhaps forever.

BLM has ordered a halt to the testing and "will take no further action . . . [on] DHS' direct sale request . . . ," Nina Rose Hatfield, BLM deputy director, wrote in her May 29 directive.

What prompted the BLM to act was an April 14 letter to the White House by three Democratic leaders of the state Legislature, Senate President Pro Tem John Burton, Assembly Speaker Antonio Villaraigosa and Assembly Speaker Pro Tem Sheila Kuehl. The letter successfully urged Vice President Al Gore to "stop all activity which could lead to an eventual transfer." An accompanying staff report commissioned by Kuehl revealed an internal Wilson administration memo from October 1991 that conceded, "While DHS has the authority to hold title to the land, it does not have authority to make a purchase." That power rests solely with the state Board of Public Works, where the DHS should have gone to get approval for the Ward Valley acquisition. The DHS never did.

Instead, in January 1993, as part of an 11th-hour maneuver involving George Bush's lame-duck interior secretary, Manuel Lujan, and Wilson administration officials, the DHS asked its dumpsite operator, US Ecology, to make a $500,000 "gift" as payment for the land and recoup its costs through dumping fees. The private infusion of cash was needed because, at the time, the Legislature wasn't going to appropriate the money in light of environmental concerns then being raised by the State Lands Commission. This too, according to the Kuehl report sent to Gore, was an end run around the law. "The Legislature . . . still controls money that is spent on behalf of the state even if that money is given to the state for a specific purpose," the report states. Before any "gift" money may be spent, the Legislature must be given 30 days' notice to "reject, approve or acquiesce" to the bequest. Here again, according to the report, the law was circumvented; the DHS never gave notice.

The DHS went still further in its "frenetic" effort to "effectuate the immediate land transfer" in January 1993. The health agency told US Ecology, the contractor commissioned to operate the site, to wire the half-million-dollar gift directly to Lujan "on behalf of the state." This was yet another dodge. For the DHS to accept a donation of money required the cooperation of, among others, the state controller - but Gray Davis, the controller at the time, was a prominent critic of Ward Valley. Sending the money straight to Lujan kept Davis out of the loop.

Those facts, spelled out for the first time last month in Kuehl's groundbreaking report, were enough to prompt the BLM memorandum halting the process of readying the site for its nuclear future.

Dr. Joseph Lyou, executive director of the Committee To Bridge the Gap, which has opposed the Ward Valley proposal for years, commented on the BLM decision this week: "Governor Wilson, in his zeal to dump large amounts of nuclear-reactor wastes, bypassed state law. Now those shortcuts turn out to lead into a constitutional thicket, with no way out."

Suspension of federal action on the land transfer further dims the prospects for a deal that the Wilson administration had hoped to revive via proceedings in a Washington, D.C., federal District Court. The DHS and US Ecology claim in a joint lawsuit filed last year that the sale of the federal land was actually approved on January 19, 1993. That was Lujan's last day in office, and on that day he issued a formal "Record of Decision" approving the sale of the land to the "State of California, Department of Health Services."

The purchase was immediately voided, however, by a federal court, which had earlier issued a restraining order blocking the transfer as a possible violation of the Endangered Species Act. Faced with the prospect of a contempt citation, incoming Interior Secretary Bruce Babbitt rescinded the approval altogether. Separately last month, the U.S. Department of Justice submitted a brief to the court agreeing that the DHS lacked the authority to purchase Ward Valley.

Nevertheless, the suit alleges that the Lujan-Wilson administration deal is a binding contract and must be honored. But unless the federal court agrees with the DHS and US Ecology - an unlikely outcome considering the legal issues involved - Ward Valley will remain a remote and arid spot on the map.

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