Chapter 4




Following the US Ecology’s designation of the Ward Valley as the preferred site to build a radioactive waste dump, the conflict heightened. Nothing like specifics can make people take notice of the implications of a proposed facility. As US Ecology prepared its License Application, and the Department of Health Services (DHS) and Bureau of Land Management (BLM) subsequently prepared the Environmental Impact Statement/Report (EIS/R), it became increasingly clear that the dump had all manner of roadblocks ahead. The proposed site was in undeveloped desert, i.e., prime desert tortoise (Gopherus agassizii) habitat; it was twenty miles from the Colorado River and the town of Needles; it would take waste from nuclear power plants; all of which could stimulate vigorous opposition. And although the licensing process is, in theory, straightforward, there were many ways in which the dump could be stopped or stalled. The State Lands Commission could refuse to acquire the land, the federal government could refuse to give it up, the Endangered Species Act could be put invoked in opposition, and pure political pressure could ultimately make or break the project. What the proponents (US Ecology, DHS, and BLM) faced was the potentially crippling specter of public opinion. In this chapter I discuss the conscious attempts by participants in the conflict to define the roles of others in the conflict, and, in the process, to appeal to aspects of the collective narrative matrix of the public that extend far beyond the realm of what is conventionally thought of as risk assessment. It is my contention that whether or not the dump is built will depend on the success or failure of the proponents at imposing their set of roles on others, and the degree to which those roles coincide with the collective narrative matrix of both the people of California and the politicians charged with giving the final permission.

In this chapter I identify three areas where the proponents have tried to foist their set of plots, roles, and interests on other actors in the conflict. First, I consider how proponents have funneled environmental concerns through the issue of the desert tortoise. By creating a scenario in which the tortoise would presumably come out ahead if the dump is built, the proponents have attempted to define the roles of groups and individuals concerned about the tortoise, as well as diverting any other concern about the destruction of desert. Second, I trace the efforts of dump proponents to define the waste stream that would come to Ward Valley by painting the dump as part of the progress of nuclear medicine. This has meant forcing the practitioners of nuclear medicine into a role as loyal supporters of the dump. Finally, I investigate the issue of radioactivity potentially contaminating the aquifer under the site as well as the Colorado River.

Saving the Desert Tortoise: US Ecology as Ecologist

Prior to the choice of the Ward Valley site, the desert tortoise had spent some time in the headlines (Dempsey 1983; Feldman 1991; Hillinger 1991; Los Angeles Times 1988, 1989a, 1989b; New York Times 1989a, 1989b; Sahagun 1989; Warren 1989, 1990a; Wood 1989, 1992). Its numbers had been declining due to habitat loss, predation by ravens and a respiratory disease spread by freed pet tortoises (Johnson 1983; Stammer 1988; Paddock 1989a; Jacobson et al. 1991). The U. S. Fish and Wildlife Service had implemented a controversial plan to kill ravens in an effort to save the tortoise (Johnson 1988; Warren 1990b; Los Angeles Times 1989a; New York Times 1988, 1989b). Presumably knowing that public awareness of the desert tortoise would be relatively high and given its listing as an Endangered Species (Warren 1990c; Rotella 1989; Paddock 1989b; Los Angeles Times 1989b; Matthews 1989), US Ecology must have known that it would have to address the issue of the tortoises living on the Ward Valley site.

Making the Desert Tortoise Want the Dump

US Ecology and the other dump proponents, faced with the obstacle of 20 desert tortoises inhabiting its proposed dump site set about problematizing the situation. US Ecology’s solution involved two parts. First it suggested relocating the tortoises on the site, and second it promised to build a wall along the freeway to keep desert tortoises from dying on the road. These suggestions wrote a distinct role for the desert tortoise. US Ecology, rather than treating the interests of only the tortoises on the site, found another danger to the species, being run over by cars. By building a special tortoise fence that would encourage the reptiles to go under the road rather than over it. US Ecology thereby tries to take credit for addressing the needs of the species by defining the interests of the tortoise such that the dump is now in its best interest.

Comments made by those working with US Ecology illustrate this new role for the tortoise. A biologist recruited by US Ecology to study the tortoise goes so far as to say that "If we can decrease the effect of the freeway, there is going to be a net benefit for the tortoises in Ward Valley." The attitude of dump supporters almost seems to be that US Ecology will be doing the tortoise a favor. A state official suggested that "The opportunities are clearly out there for the tortoise to come out better in the end. We can’t control the tortoise, but he will certainly have a better chance than he does now" (Paddock 1989). The effectiveness of the imposition of this role depends on two factors, the willingness of individual tortoises to be relocated, and the acceptance of a fence as recompense for loss of habitat.

The efforts of US Ecology to make the dump seem to be in the interest of the desert tortoise serves also to deflect other concerns about animals. By concentrating discussion on the tortoise US Ecology effectively avoids addressing the effects on other wildlife. For example, the desert kit fox (Vulpes macrotis arsipus) is also found on the site and is faced with the same threats of habitat loss as the desert tortoise. However the effects on the kit fox and other "sensitive wildlife species" are deemed to be adverse but not significant. This conclusion allows US Ecology to funnel all concern for wildlife through the desert tortoise, which it concludes is in favor of building the dump.

Although not explicitly, US Ecology was trying to construct a narrative about their relationship with the tortoise. US Ecology’s narrative might go something like this. "We know that the tortoise lives on the proposed site and we care about the tortoise. But the tortoise has a much greater danger, one that is has had for a long time: being hit by cars. So we will build a fence to keep the tortoise off the road, and build tunnels to let the tortoises go under. Then, the tortoise will be better off and live in happy harmony with are disposal site." Albeit very simple, this has the basic attributes of a narrative. The plot is well–known; sympathetic protagonist faces danger, hero circumvents danger, sympathetic protagonist and hero live happily ever after. US Ecology must convince others that this narrative adequately reflects the situation.

The governmental agencies responsible for preparing the official Environmental Impact Statement/Report for the project unquestioningly accepted US Ecology’s characterization of the situation with the tortoise. The State Department of Health Services and the federal Bureau of Land Management accepted US Ecology’s problematization by incorporating it into the draft EIS/R (Dames and Moore 1991: Vol. 1. Sections 2.1.6, 3.1.6, 4.1.6). As per state and federal law the draft EIS/R was made available for public comment. Letters were then published, with responses, in the final EIS/R. The extent to which the dump proponents were successful in their definition of the interests of the tortoise is evident in these comments.

Dispute Over What the Desert Tortoise Wants

Among those accepting the definition of the problem presented in the EIS/R were predominately engineers and users of radioactive materials. For example the National Society of Professional Engineers praised the draft EIS/R for addressing "appropriate socio–political and technical concerns thoroughly." In particular they thought that the handling of the desert tortoise issues "has been creative and will mitigate any unavoidable impacts by reducing the loss rate from presently occurring road kills" (Dames and Moore 1991: Vol. 2, letter 19). A nuclear engineer from New Mexico noted that the Ward Valley location is less that 0.1% of tortoise habitat, and that area is already criss–crossed with paved and unpaved roads (Dames and Moore 1991: Vol. 2. letter 26). Finally, the California Radioactive Materials Management Forum (Cal Rad), a group representing producers of radioactive materials, expressed its approval for the solution to the desert tortoise question. It highlighted that the desert tortoise mitigation measures were developed by a working group that included the U. S. Fish and Wildlife Service, the California Department of Fish and Game, BLM, US Ecology, Sierra Club, DHS, Cal Rad Forum, and the Desert Tortoise Council. They thought the mitigation plan to be more than adequate, and voiced opposition to any additional mitigation measures because the cost would be passed along to producers, the members of Cal Rad (Dames and Moore 1991: Vol. 2 letter 105).

Some comments illustrated an acceptance of the terms of the problem as set forth by dump proponents, but questioned their solutions. Citizens for Mojave National Park suggests that US Ecology purchase private lands in the East Mojave National Scenic Area (EMNSA) and construct the tortoise fence along the entire southern boundary of the EMNSA. The Desert Tortoise Council also accepted some of the terms of discussion while opposing its conclusions. They think that the Ward Valley site is inappropriate, preferring the alternative site in the Silurian Valley, which is not prime desert tortoise habitat. They also deny that the tortoise fence "lessens the impacts of the loss of 100 acres of existing crucial desert tortoise habitat." They contend that no data have been collected to prove the effectiveness of the use of fencing to enhance habitat. In addition they see the proposal to maintain the fencing for the 100 year life of the project to be unreasonable and propose that the DHS should post a letter of credit with the Department of Fish and Game to cover costs of maintaining the fence, and that they fund a biologist to insure compliance with mitigation measures for the life of the project.

The State Lands Commission also questioned the extent to which mitigation measures were appropriately proposed. They suspect that ravens will use the tortoise fence for perches, which would not be beneficial for the tortoises. Further, they too question the effectiveness of the fencing solution, characterizing it as "non–traditional and speculative." They propose research to investigate the proposition that the highway is really a "death sink" for the tortoises (Dames and Moore 1991: Vol. 2, letter 70).

The California Department of Fish and Game provided lengthily comments on the Draft EIS/R which indicates their problems with the proposed mitigation. First, they ask that the dump be sited in the Silurian Valley, outside of the Department’s "Desert Tortoise Crucial Habitat Areas" (DTCHAs). They then give detailed comments on their specific concerns, which indicate at least a partial rejection of the proponent’s characterization of the situation. For example, the EIS/R states that the tortoise fence will "enhance" existing habitat. Fish and Game responds that habitat is not enhanced, rather the fence is an experimental attempt to reduce road kill of tortoises. The characterization of the loss of 90 acres of tortoise habitat as "adverse but not significant" is also disputed. Perhaps the most important feature of the comments is that the interests of the tortoise are considered with more biological sophistication. The proponents defined the good of the tortoise by a simple calculus; a tortoise is a tortoise, no matter where it is, and more tortoises is better. The Fish and Game comments dispute this simple understanding and introduce the importance of sub–populations, genetic diversity and minimum requirements for species sustainiblity. The Fenner–Chemehuevi DTCHA, in which Ward Valley falls, is considered to be "the one area in the world large enough to maintain a viable, self–sustaining desert tortoise population in perpetuity" (Dames and Moore 1991: Vol. 2, letter 118).

The most complete rejection of the proponent’s problematization came from the Abalone Alliance (Dames and Moore 1991: Vol. 2, letter 138). The Alliance asserts that there is no way to keep tortoises and small mammals off the site after closure. This possibility is documented elsewhere (Reith & Thomson 1992:111; O’Farrell & Gilbert 1975) and could spread radiation to the external environment (for the opposing view see Dames and Moore 1991: Vol. 1, p. 18). This broadens the question of biotic effect and brings into question the time scale of consideration. The Alliance points out that "long term" for US Ecology means the period that the company is responsible, while the Alliance would hold 500 to 10,000 years as "long term".

As a whole, comments on the draft EIS/R represent a range of responses to the roles set forth by dump proponents. Some respondents rejected the definition of the problem outright, while others only contested the solution proposed, but accepted the question. The next step in the legal process involved the addressing all of the comments into the final EIS/R. Through this process, the proponents gain authority to speak in the name of the various groups. They can then characterize the final EIS/R as addressing the concerns of those who found problems with the draft report. The next section will give examples of how the proponents acknowledged the criticisms of the draft EIS/R.

Keeping Reactions in Line

In the final EIS/R the proponents use several tactics to diffuse criticisms of the draft EIS/R. One method is simply to respond "Comment noted." Another is simply to assert that the facts forming the basis of criticism are wrong. Third is to redirect the question back into the terms defined by the proponents. I shall not describe all of the responses included in the final EIS/R, but the following are examples of these different techniques of deflection.

The response "Comment noted" is used in response to what might be called "public opinion." Simple statements of approval or disapproval are met with this response, both for comments in regard to the desert tortoise and all other areas of concern. For example, Sally Ballard writes "I am bitterly opposed to the Bureau of Land Management’s diabolical plan in an attempt to force the City of Needles to accept so called Low Level Radioactive Waste" (Dames and Moore 1991: Vol. 2, letter 36). The response "Comment noted" indicates a reluctance to engage in a moral debate. In instances where there is a fact to contest they do that instead.

Marcia Stieger wrote that the Ward Valley site was "critical habitat" for the desert tortoise. The response in the FIES/R was that "The Ward valley has not been designated a ‘critical’ habitat under the Federal or State Endangered Species Act. The project area has been labeled ‘crucial’ habitat area by BLM in its California Desert Conservation Area Management Plan" (Dames and Moore 1991: Vol. 3. p. 18). They go on to assert that any potential danger to the tortoise will be addressed by the construction of a tortoise fence along I–40. In this instance the proponents again do not engage in a moral debate but dispute the veracity of the terms of the concern. This in not, I dare say, important to, nor the point of the comment. By making the legal distinction between "critical" and "crucial" the moral weight of the comment is deflected and the question recast in terms that the proponents have determined.

The third technique used to deal with critical comments seems to be to reassert the conclusions made in the draft document. Let us consider responses made to the Desert Tortoise Council as an example of this technique. Recall that the Desert Tortoise Council expressed concern that there are no data that support the effectiveness of the tortoise fence. The response to this concern is that no data are necessary because "M. Fusari’s paper, ‘Feasibility of a Highway Crossing System for Desert Tortoises’ concluded that tortoises would use culverts to cross an obstacle or cross under a freeway, and that tortoises would probably become familiar with culvert locations" (Dames and Moore 1991: Vol. 3 p. 31). Once again the proponents are trying to establish themselves as speaking for the tortoise; in this case asserting, on the basis of one paper, that tortoises would use specially provided culverts to get to the other side of I–40. In short, this type of response is a restatement of the conclusions reached in the draft EIS/R.

Time after time, the claim is made that the "impact" on the desert tortoise is insignificant and that those insignificant impacts would be further reduced by mitigation measures, with the conclusion that the project is acceptable to the tortoise (see Dames and Moore 1991: Vol. 3, Comments 37.4, 40.3, 65.4, 70.1, 105.1, 118.7, 118.10, 118.31). The trump card for these assertions is the U. S. Fish and Wildlife Biological Opinion that "the proposed project is not likely to endanger the continued existence of the desert tortoise (Dames and Moore 1991: Vol. 3, Appendix 3). However, in citing this Biological Opinion, the final EIS/R never mentions that the USF&WS opposes the site in that same opinion and deems it to be in violation of Section 2 of the Endangered Species Act, which mandates Federal agencies to conserve listed species (a direct attack on BLM support of the project).

Following the publication of the FEIS/R, the battle over tortoises in Ward Valley went to the courts. Two lawsuits were filed, one aiming to block the dump on the basis of desert tortoise habitat, the other focusing on the overall survival of the tortoise (Hughes 1994). The lawsuits resulted in the designation of 6.4 million acres of critical habitat for the desert tortoise under the Endangered Species Act (Clifford 1994). The Ward Valley site was included in this area (McCoy 1994). The responses to this designation are similar to the debates found in the EIS. Steve Romano, US Ecology vice president, tried to maintain the authority of dump proponents to speak for the tortoise and define its needs. "Our view," said Romano, "is that our mitigation proposals will result in a net benefit to the species and that we have nothing to fear from the new rule" (Clifford 1994:A20). This may turn out be true. An unidentified government biologist noted that "Ward Valley will take up about 75 acres in an area that has almost 1 million acres of prime habitat. Even with the dump there, the area has the capability of far exceeding recovery goals."

Defining Radioactive Waste: What Goes in Ward Valley

Another issue which has become the locus of controversy has been the character of wastes to be disposed of at the Ward Valley site. These battles are of a different nature than those about the desert tortoise, but they do, I believe, have many features in common. In both cases the proponents of the dump seem to be trying to define an element of the plan in their own terms. For the tortoise, proponents attempted to define the interests of the tortoise such that the dump would be acceptable, while opponents took the opposite tact. In this second instance, proponents are attempting to define low–level radioactive waste as the harmless byproduct of medical procedures in an attempt to garner public support for the project. These definitions and redefinitions are expressly calculated to fit into a narrative about the situation—either a narrative about US Ecology rescuing the desert tortoise from the dangers of I–40 or, in this next example, a nuclear dump allowing for better continued health care. Dump proponents are counting on the fact that these narratives will fit in with the collective narrative matrix of the public—that is, that these events will resonate so strongly with certain aspects of the public’s narrative matrix that they will overpower those elements that may conflict with different elements of the narrative matrix.

The characterization of the sources and make–up of radioactive waste, called the "waste stream", is one of great public consequence. The way in which the public thinks about the sources of low–level waste understandably influences the degree of public support for a low–level radioactive waste dump. Therefore, I trace this issue through newspaper accounts, mostly in the Los Angeles Times, but also in the New York Times and the Wall Street Journal.

Ambiguous Waste

In the early days of developing plans for a radioactive waste dump in California the definitions of low–level waste were brief and uncontentious. An article on the non–ratification of the South–Western Waste Disposal Compact gives a typical run–down. "Low–level waste is radioactive material–clothing, plastic gloves, medical supplies and other items–from nuclear industries, laboratories and hospitals. The contamination can take up to 100 years to dissipate, and the material must be buried for shielding purposes. It does not include more potent forms of waste, such as spent nuclear reactor fuel rods" (Gillam 1985). Variations on this definition are found in articles through 1990. For example, waste is said to range from "certain equipment from nuclear power plants to rags, papers, filters and protective clothing used in commercial and medical processes" (Goldstein 1986a, the same words are used in Goldstein 1986b). Warren (1990d) characterized waste as "including contaminated tools and clothing from nuclear power plants as well as filters, rags and medical research supplies."

Insofar as the public is concerned, these definitions do not provide a complete picture, nor are they particularly misleading. In terms of sources of waste they are entirely correct, but they do not give any idea of the proportion of wastes coming from each source. But up to this point in the public discourse the sources of waste had not been a major issue, so this ambiguity is understandable. However, by lumping all of the sources in together a distinction is not made that would show the differences in longevity and radioactivity between wastes from different sectors. Then, in 1991, the first information is publicized about the character of the waste stream (Hubler 1991). This opening of public discussion coincides with a conscious effort by dump proponents to sell the project by characterizing it as solving the problems of medical waste.

Hubler (1991) reported the following breakdown of waste sources by volume, citing "State health officials" as the source (In fact, these numbers are found in the FEIS/R for Southwestern compact waste from 1985–1987 according to US Ecology).

The article also mentioned that low–level waste could include such long lived isotopes as Sr–90, Ni–59, and tritium (an isotope of hydrogen).

Defining the Waste Stream

Again, as was the case with the desert tortoise, the Environmental Impact Statement/Report can be seen as representing the views of dump proponents. The DHS and BLM used data from US Ecology to construct the report (as well as some additional research), and taken as a whole it can be seen as the argument for the project by its proponents. Criticisms levied at the EIS/R show this to be true. I consider now the characterization of the waste stream found in the FEIS/R and investigate the ensuing controversy.

The waste stream as characterized by the FEIS/R is summarized in table format below, and includes the figures for the national waste stream, as found in the back of the last volume of the EIS/R. What is so remarkable about this characterization of the waste stream is the incredibly large percentage of waste activity attributed to medical processes. Approximately 5% of the waste by volume accounts for 80% of the activity. Somehow, the writers of the EIS/R have managed to attribute the largest proportion of waste to medical producers. Compared to the .009% attributed to medicine nationally, this percentage makes one wonder what is so different about the Southwestern Compact.

Producer Region

% Volume

% Activity


Industry SW Compact






Utilities SW Compact






Medical SW Compact






Government SW Compact






Academic SW Compact





No matter how the dump proponents came up with the figures for medical waste, they are tied to a narrative that the proponents would like the public to believe. As becomes clear later in this section, dump proponents consciously chose to emphasize that medical waste would go to the Ward Valley dump. By doing so, they appeal to another simple narrative. "Medicine relies on radioactive materials for some procedures. They need somewhere to put the waste; without it, they won’t be able to treat people for cancer. So, opposing the Ward Valley dump means that your Grandpa won’t get the care he needs. Anyone who opposes the dump must be selfish or just does not care about people." In this way the dump proponents hope to solidify public support. But some groups reject this story, if not the shared narratives that it is intended to resonate with..

Committee to Bridge the Gap Technical Review

The Committee to Bridge the Gap, a non–profit nuclear watchdog group, commissioned a technical review panel to assess the proposed Ward Valley project. One of their main points of contention was the characterization of the waste stream (Committee to Bridge the Gap 1992). They found that the numbers given in the EIS/R did not match Department of Energy numbers for the Southwestern Compact. In fact, the Department of Energy recorded that of waste measured by activity from 1985–1990 only 0.1% was medical and 0.13% was academic. This period included the decommissioning of UCLA’s research reactor and therefore the amounts of academic waste were larger than normal (Abelquist 1994). In the opinion of the Technical Review Panel there seemed to be an effort on part of dump proponents to characterize the waste stream as having primarily medical sources.

There is additional evidence that this characterization is consistent with the explicit plans of dump proponents. In the technical review, Committee to Bridge the Gap also published a letter from Cal Rad’s public relations consultant, Winner/Wagner & Associates, Inc. As mentioned earlier, the California Radioactive Materials Management Forum is a group of producers of radioactive waste that supports the Ward Valley dump. The memo outlines a "Strategic Communications Plan" for Cal Rad. The public relations consultants suggest that Cal Rad use academic members to make public statements. They posited that "By invoking the credibility of institutions devoted to unbiased academic pursuits and public health, Cal Rad’s messages can get across to an audience skeptical of any organization with the word ‘radioactive’ in its title" (Committee to Bridge the Gap 1992: Appendix D, p. 8). Winner/Wagner also recommends a letter writing campaign from "students, medical faculty, scientific researchers, biotechnology companies and, possibly, patients whose treatment depends on affordable nuclear medicine" (p. 10) As a positive example they cite UCLA’s Dr. Carol Marcus’ "impressive success in generating seventy letters to the Governor on Harbor UCLA stationary in support of the project" (p. 11). This is all part of an effort to create a "Re–Identification of Constituents" (p.1), and to assure the public that Ward Valley is "the environmentally responsible course of action" (p. 6). Even from these brief quotations it is clear that the medical (and academic) sectors are being purposefully used in the characterization of the waste stream.

The question of how the FEIS/R managed to identify the source of most of the curies destined for Ward Valley as medicine is also answered by the Committee to Bridge the Gap report. The FEIS/R predicts that 99.3% of the curies to be disposed are from tritium, an isotope of hydrogen with a 12 year half–life (Dames and Moore 1991: Vol. 1, Table 3.1.4–6). US Ecology predicts that 4,810,635 curies of tritium will be buried at Ward Valley through the year 2020. This quantity of tritium is from two companies, ICN and Moravek, which are use tritium to "tag" atoms for medical use. The process they use is only 1–10% efficient, meaning that 90–99% of the tritium is wasted. Imagine dumping a gallon of paint on a BB and throwing away the 99% of the paint that does not stick to it. Despite tritium recovery systems developed and implemented in other parts of the country ICN and Moravek have not adopted such practices. More importantly, the DHS and BLM have not investigated this method of reducing radioactive sources, and forcing ICN and Moravek to recycle their tritium. This may be because reducing the amount of waste from the medical industry is not in the interest of dump proponents.

If efficiency of tritium use by ICN and Moravek were to be increased, the waste stream predictions would yield a different sectoral composition. High tritium levels from the medical industry is in the best interest of proponents. In fact, the predictions of tritium waste show an unexplained increase over the next thirty years. The FIES/R predicts that tritium wastes (from ICN and Moravek) will increase from 7,000 curies per year from 1988–1991 to 500,000 curies per year in 2020. All other categories of waste are either projected to decrease or stay the same. There is no reasonable evidence to conclude that the DHS/BLM tritium projections are accurate (Committee to Bridge the Gap 1992). The effect of these predictions is to obscure the quantities of waste produced by utilities. If one removes ICN and Moravek from the calculations, medical sources account for only 2.2% of the curies in the waste stream while industry and utilities account for 96.5% (Committee to Bridge the Gap 1992: Appendix G, p. 3). It is easy to see why dump proponents are not urging ICN and Moravek to adopt tritium recycling policies.

Medicine’s Unholy Alliance

While the FEIS/R and its responses, including the Committee to Bridge the Gap Technical Review, provide a good picture of the battle over the characterization of the waste stream, the conflict is illustrated by the way it is played out in the popular press. Given that public opinion is the arbiter of the success of dump proponents in defining the waste stream, the debate in the press is crucially important. In contrast with the characterizations of the waste stream found in the press earlier in the siting process, more recent accounts have shown an intense disagreement about the character of wastes destined for Ward Valley.

Two Wall Street Journal editorials (1993a, 1993b) try to paint the Ward Valley controversy as a crisis for medicine and biotechnology. The first, "Burying the Future", laments that "California’s biomedical and surgical talent at work in the field of nuclear medicine is running up against a desperate scarcity of sites for discarding the remnants of low–level nuclear technology used in so many cutting–edge fields of research and practice." They acknowledge that "opponents charge that biotechnology is a cover" for using the site for utility waste, but conclude that the medical community "would appear not to think that their interests can be met in another way." The second editorial, "Dumping on Medicine", asserts that California’s biomedical industries have been "slapped down" by Babbit’s decision to halt the land transfer for Ward Valley. As an example, it uses Thomas Edgington, a University of California researcher who "knows the science of the issue, but is exasperated by the issues."

These two editorials have several interesting features. They suggest that it is the biomedical industry that needs Ward Valley, and that the desire for Ward Valley in the medical community is unanimous and unproblematic. They use academics as an example and make an implicit appeal to the weight of expert knowledge. These all attest to the success of dump proponents to define the waste stream and the constituent of the dump.

While the definition of waste was successfully expressed by the arch–conservative Wall Street Journal, rejections of it are found in the L. A. Times. A letter to the editor from a member of Physicians for Social Responsibility, a group long opposed to the dump, presented an alternate vision. Dr. Richard Saxon wrote that "While arguments for the facility have swirled around medical and biotechnical waste disposal, the real reason for this dump is the utility industry’s need to dispose of its waste, which will be about 99% of the radioactivity of the total waste thrown in Ward Valley" (Saxon 1993). A subsequent editorial printed portions of a letter that suggested that the medical community perhaps was resistant to the role set out for it. The letter, from Carol Marcus, UCLA physician and Cal Rad member, to the Nuclear Regulatory Committee complained that "Nuclear power employees have been told by their corporate leaders to remain silent and unseen and let the biomedical and academic sectors ‘sell’ a LLRW site" (Los Angeles Times 1993e). The editorial concluded that the waste included under the "low–level" rubric actually represents different kinds of waste, and that the different producers perhaps did not share the common goal of long–term disposal. Medicine was the prime example, with temporary above–ground storage suggested as the solution.

Dr. Marcus immediately replied with a series of points. First, temporary storage to decay is not sufficient for the biomedical community. Second, most medical isotopes are produced at nuclear reactors. Third, hospitals are not holding till decay, but diluting and disposing of radioisotopes in the sewer. Finally, she blasts the Times for showing a "basic lack of understanding of this issue" (Marcus 1994a).

Marcus seems to have been successful; not long thereafter the Los Angeles Times did a front page article on the plight of the medical industry. The article provides grim images of fifty–five gallon drums of waste piling up in hospital corridors because Ward Valley is not yet open (Clifford 1994a). Marcus provided the list of isotopes used for medical procedures, which presents a microcosm of this issue. Compare Marcus’ list of medical isotopes to one given by the Committee to Bridge the Gap. Clearly, both Dr. Marcus and the Committee to Bridge the Gap are presenting a list which reflects a point of view, but the difference between them indicates just how much of a battle there is over medical waste.

Dr. Marcus chose to provide a list of isotopes that were extremely long–lived, while the Committee to Bridge the Gap shows a list of short–lived isotopes. Dr. Marcus’ list fits into the proponents narrative—we need the dump to take care of these isotopes that are needed to treat and find cancer. To support the idea that medicine is in dire need of a permanent storage facility for radioactive waste she has included very long–lived isotopes that would require long–term isolation. The Committee to Bridge the Gap rejects this characterization and instead shows that medical isotopes could be held until decay. To support this position they have chosen very short–lived isotopes that would decay rapidly to harmless levels, obviating the need for a permanent storage facility like Ward Valley. Although presented as tables and numbers, these two bits of information are clearly part of a conflict over an underlying narrative involving the need for a nuclear dump by medicine.

Radioisotope Half-Life Medical Use
Barium–133 10.5 years Calibration of equipment used in radiation treatments
Carbon–14 5,730 years Research studies of metabolism and detection of genetic disorders
Cobalt–60 5.3 years Radiation therapy for cancer
Iridium–192 73.8 days Radiation therapy for cancer
Strontium–89 50.5 days Easing of cancer patients pain when the disease spreads to the bones
Natural Uranium 4.47 billion years Some dental fixtures to provide color and brightness

Table 4-2: Medical radioisotopes listed by Dr. Carol Marcus (Clifford 1994a).


Radioisotope Half-Life Medical Use
Phosphorus–32 14 days Bone marrow therapy
Gallium–67 78 hours Tumor location
Rubidium–81 4.7 hours Myocardial imaging
Technetium–99m 6 hours Bone imaging, brain imaging, imaging lung perfusion, myocardial imaging, blood pool, renograms, thyroid imaging, thyroid uptake, renal imaging
Iodine 123 13 hours Thyroid imaging, thyroid uptake
Iodine–125 60 days Renograms
Iodine–131 8 days Renal imaging, renograms, thyroid imaging, thyroid uptake, tumor localization and therapy
Xenon–133 5 days Lung ventilation
Mercury–203 46.6 days Renograms
Thallium–201 73 hours Myocardial imaging

Table 4-3: Medical radioisotopes listed by Committee to Bridge the Gap (Committee to Bridge the Gap 1992).

Dr. Marcus’ list of medical radioisotopes is an attempt to show that medicine needs Ward Valley but it hides the resignation that she had in accepting the role set out by dump proponents. This becomes clear when further portions of her letter to the Nuclear Regulatory Commission were published in a letter to the editor from Dr. Richard Saxon. Marcus had written,

And slog on they did. The effort to enroll medicine in a fight for Ward Valley was successful, the nuclear medicine representatives accepted the role designated for them (e.g., Taylor 1993). When I asked Dr. Marcus about the list of medical radioisotopes that she had given the Los Angeles Times she told me that it had been provided to her by US Ecology, and could not confirm whether or not the isotopes listed were still in use for medical purposes (Carol Marcus, personal communication).

Another exchange in the Los Angeles Times shows the continuing co–option of nuclear medicine to support the Ward Valley dump. Dr. Marcus wrote an opinion piece in favor of Ward Valley, and criticizing a proposal made by Senator Boxer to construct monitored retrievable storage for medical waste. She set forth two "indisputable realities" (Marcus 1994b). First, low–level waste is significantly radioactive and dangerous. Second, "waste is waste", meaning that waste produced in academic and medical settings is the same as waste from utilities and that reactors actually produce isotopes for medicine. Almost in passing she notes that without Ward Valley "the utilities’ disposal needs would also remain unresolved." Two responses disproved the indisputability of these claims (Plotkin 1994; Hamilton 1994). Both asserted that radioactive waste from academia and biotechnology are quantitatively different beyond a shadow of a doubt—the number of curies produced in medicine and academia is "picayune" compared to low–level waste coming from nuclear reactors. Also, why should Carol Marcus be worried about the plight of the nuclear power industry?

The conclusion that dump proponents were purposefully hiding the amount of power plant waste going to Ward Valley gained more credence with an allegation of a Department of Health Services cover–up by Senator Boxer, the Sierra Club, and a Los Angeles Times editorial (Los Angeles Times 1994b). The Department of Health Services "inadvertently omitted" 144 pages of documentation of the administrative record released in connection with a legal challenge to the dump license. In the words of the Times, "The characterization of the mix of radioactive waste anticipated at the dump is dramatically different in the newly released pages from what was seen in the official environmental reports on the basis of which US Ecology was licensed to operate the dump." The amounts in question are, as you might guess, tritium. Calculations using the revised estimates for tritium reveal that the percentage of plutonium–239 was underestimated by a factor of 7,000.

These developments add further strength to my analysis of the way dump proponents have attempted to define the waste stream. Roles have been defined for different groups, and those groups have accepted those roles to varying degrees . This effort is ongoing and its final outcome remains unknown. However, it also provides a rich example of the complex ways in which science, technology and public decision–making interact. Another example is in the fight over the geology of Ward Valley, which, rather than being a fight for public support and image, is an example of the contested nature of science and expert knowledge. It is to this issue that I now turn for the final example of the chapter.

Geology and Groundwater: Science and the Expert

So far, we have seen the way the desert tortoise has been used to funnel one set of environmental concerns, those concerned with preservation and land use. The characterization of the waste stream was an example of conflict over public image, a more transparently political ploy. In this final section of the chapter, I consider the roles that are being set out in the most "scientific" point of contention for the Ward Valley dump: could radioactivity migrate to the groundwater and eventually contaminate the Colorado River, the source of drinking water for much of the Southwest? Once the Ward Valley site was designated, this became very much a commonsense fear. It would seem illogical to put a nuclear dump a mere twenty miles from a major river system. Somehow it defies good sense. The task facing US Ecology and the other dump proponents was that of convincing both experts and the public that it would take thousands of years for radiation to reach the groundwater, let alone contaminate the Colorado, and that during that period the radioactivity would have decayed to negligible amounts. The turf chosen for this effort had to be based on science, as opposed to public relations, because the fear of contaminated drinking water far outweighs the platitudes of industry officials.

The conflict has developed in several rounds and involves, as did the other examples, efforts to impose specific roles on actors in the conflict, either to discredit or support their positions. The initial public statement on the matter started with the draft EIS/R which was circulated for public and professional comment. The responses to this, published in the final EIS/R, indicate that the migration to groundwater issue was not adequately addressed in the draft EIS/R. A subsequent review of the FIES/R by Committee to Bridge the Gap revealed continuing weaknesses in the science of the proponents. As well, two independent geologic studies brought the assertions of the FEIS/R under more scrutiny. The issue was also cited by Interior Secretary Bruce Babbitt as a reason to hold up the land transfer to the dump. As the situation now stands, the State has appealed a lawsuit by the Committee to Bridge the Gap and others that ruled, among other things, that the state must reconsider the independent geologic reports and secretary Babbitt has commissioned a National Academy of Sciences panel to investigate the issues surrounding groundwater contamination. Throughout it all, the question of who is an expert, and what, if anything, constitutes objectivity, has become a recurrent theme.

As has been my contention, the positions taken with regard to these themes rely on appeals to certain shared narratives for their support. The appeal to expert opinion is based on a narrative about the unity of scientific inquiry—the idea that experts could tell a coherent and consistent narrative about the way the world works. This conflicts with narratives that portray scientists as pawns who are easily lead astray be the rewards of affiliation with big business, or their own ideological leanings. These two cultural narratives—one of the noble, learned scientist who writes the book of knowledge, and one of the corruptibility of men and women—fight for primacy with the question of the expert. Also at work are conflicting narratives about the value of land. To some, it is immoral to dump radioactivity into a hole in the desert; to others the desert is a godforsaken expanse of wasted space. These two extremes in turn reflect varying personal narratives about the relationship of humans and nature and the future of civilization. So at play in this particular issue at any given point are any number of conflicts over science, expert knowledge, nature, and land use.

Draft EIS/R: No Problem with Groundwater Contamination

Section of the EIS/R addresses the issue of groundwater flow (Dames and Moore 1991: Vol. 1, p. 4.1–20). To predict the potential for ground water contamination the prepares of the EIS required

As such, this course of action seems reasonable. As a way of establishing the safety of the dump it depends on the public and experts to believe first that the assumptions and numerical modeling can accurately predict future events and further admit that the data available for the site are sufficient to make such predictions. What the EIS/R does conclude is that even in a worst case scenario radioactive materials would not reach the ground water for 1,000 years. In their words,

In the case of an "intruder well" next to the site several radionuclides (I–129, U–238, Pu–239, and C–14) were analyzed for their potential to contaminate the groundwater. None were predicted to reach the saturated zone in less that 1,000 years, and more than 10,000 years were predicted for U–238 and Pu–239.

As would be expected, the draft EIS/R stated that there was nothing to worry about in terms of groundwater, or for that matter the Colorado River, becoming contaminated. In fact, nowhere in the hydrologic description of the Ward Valley site does the EIS/R mention that the aquifer below could be connected to the Colorado River. Connections to other aquifers are noted, but no possible pathways to the river are described (Dames and Moore 1991: Vol. 1, pp. 3.1–16—3.1–26).

The Public Comments and the FEIS/R

One of the leading comments in public and expert comments on the EIS/R was the worry about contamination of the Colorado River (Dames and Moore 1991: Vol. 2). One letter opens, "I am bitterly opposed to the Bureau of Land Managements [sic] diabolical plan in an attempt to force the City of Needles to accept the so called low level radioactive waste… The radioactive dump site is 13 miles as the crow flies from Needles, there are at least 4 running underground springs 22 miles form Needles. These springs run downhill west in the direction of the Colorado River. This radioactive waste could contaminate our air, river, and underground water supply" (Dames and Moore 1991: Vol. 2, letter 26). A more restrained respondent writes, "We object to any induced concentrations of radioactivity in our ground water and object strongly that you would even suggest that we accept a drinking water standard as noted in the DEIS!!" (Dames and Moore 1991: Vol. 2, letter 63). Another letter states that "Their water tests were done with their own scientist, I would like an independent study" (Letter 96).

These comments, from the public, indicate a mistrust of the EIS. Either they did not find or understand section or they were not comforted by its conclusions. They as the public did not consent to the expert scientific conclusions put forth in the EIS. The last suggested that the science was somehow biased by being affiliated with the project. A comment like "Their water tests were done with their own scientist, I would like an independent study," indicates that members of the public do not really believe that science is objective and neutral. If it were, it would not matter whose scientist did the tests. The comment quite clearly claims that the scientific emperor of objectivity has no clothes. On another level, it makes a moral comment about humans and nature, a topic that the EIS does not engage.

Comments from other agencies were not so pointed, but conveyed a similar message. The Environmental Protection Agency complains that in the section on effects on groundwater,

While this attack is not of the form, "Your science is biased," it does suggest that the dump proponents have not done science properly. Rather than impugn the integrity of the EIS/R authors by calling them intentionally biased, they point out how the analysis is flawed, thereby keeping the image of scientists pure.

In addition to the criticisms made of the DIES/R and responded to in the FEIS/R, several other reports have been written since that have levied further attacks on the science of the dump proponents, particularly concerning groundwater. One has already been discussed with reference to the waste stream, the Committee to Bridge the Gap Technical Review, and another, written by a group of United States Geologic Survey scientists has become known as the Wilshire Report.

Committee to Bridge the Gap Technical Review and the Wilshire Report

The Committee to Bridge the Gap Technical Review dedicates half of its report to a series of issues surrounding the potential contamination of groundwater and the Colorado River. These concerns over groundwater are divided into two distinct areas, radionuclide transport to the groundwater and connections between the Ward Valley aquifer and the Colorado River.

The largest issue in the question of radionuclide transport to groundwater is that the FEIS/R does not consider the migration of tritium, which, by the proponent’s figures would make up 99.3% of the activity disposed of in Ward Valley. The FEIS/R only models transport for I–129, U–238, Pu–239, and C–14 , even though tritium represents the most mobile radionuclide and the highest total activity of the waste stream, features that the FEIS/R erroneously attributes to I–129 and Pu–239 respectively (Committee to Bridge the Gap 1992:33–34). This omission is made more serious by the fact that tritium migration has occurred at all low level was sites in the United States where it has been investigated. Furthermore, tritium was found down to the full 100 feet of all test wells at the Ward Valley site. Even though several agencies questioned the proponents on the implications of this fact (including the EPA and the California Regional Water Quality Control Board), the FEIS/R only tries to explain it away. The Committee to Bridge the Gap review points out that the only possible source of the levels of tritium found at 100 feet is atmospheric nuclear weapons testing, meaning that the tritium migrated 100 feet in under 35 years, which deeply undermines the FEIS/R assertion that it would take "thousands of years" for radionuclide transport to groundwater.

The proponent’s response to these criticism was to add an appendix to the FEIS/R which gave an explanation by US Ecology’s contractor (Harding Lawson Associates) for why tritium is found at 100 feet. The fundamental flaw with this explanation is that ignores the data. Levels of tritium are measured in Tritium Units (TU), each equal to 3.2 picocuries per liter of liquid. Ground measurements in 1989 for were 1.39 to 6.00 TU at 25 feet to 0.01 to 1.66 TU at 100 feet. The proponents fit a curve to these data concluding that tritium levels at the ground surface start at 20 TU and decrease to 0 TU at 100 feet. The Committee to Bridge the Gap finds nothing about this curve acceptable; it ignores the data at the surface and at 100 feet. In sum, they claim that:

This section of the Committee to Bridge the Gap review accuses the dump proponents of not following scientific procedure. The second issue concerning groundwater is equally critical.

First, the Committee to Bridge the Gap review criticizes the FIES/R for not taking groundwater usage into account when predicting the movement of groundwater from the Ward Valley site. At present groundwater flows south along the Ward Valley toward Danby Lake. However, if water is drawn from the Landfair and Piute basins to the north the direction of flow may at some time reverse allowing potential contamination a direct route to the Colorado River. The draw–down of the Piute aquifer is not hypothetical, the City of Needles uses it for its water source (Committee to Bridge the Gap 1992:48–49). Second, the FEIS/R skirts the question of the Ward Valley aquifer being connected to the Colorado River. It states that "Ward Valley is a topographically closed basin with no surface drainage to adjacent basins or the Colorado River. In addition, surface water and ground water flow at the project site is to the south away from Needles and the Colorado River" (Dames and Moore 1991: Vol. 3, p. 17). This is a carefully worded comment which avoids the issue of groundwater connectivity with the Colorado River—there is no claim that the Ward Valley is a closed groundwater basin, although they would certainly like the reader to make that conclusion. But to the contrary, according to the USGS the Ward Valley aquifer is a basin "from which ground water drains to the Colorado River" (Bedinger et al. 1984).

A second technical review was made of the EIS/R, this one by three United States Geologic Survey scientists (Wilshire et al. 1993). The three reviewed the DEIS/R and noted that only three USGS employees were consulted, two cartographers and a seismologist. They then offered their experience as geologists with expertise in the Southwest to Secretary of Interior Bruce Babbitt early in 1993. They were invited to comment by one of Babbitt’s deputies, and did so in a June 2, 1993 memo outlining seven earth science concerns about the DEIS/R. The Secretary of Interior allowed US Ecology to "rebut" the concerns and subsequently dismissed the concerns of the Wilshire, Howard, and Miller as offering nothing new. United States Senator Boxer then supplied the USGS geologists with a copy of the US Ecology rebuttal and asked them to respond to it. Their detailed response, as mentioned before, has become known as the Wilshire Report and has sparked considerable controversy.

The concerns outlined in the original memo to Secretary Babbitt were as follows,

Two of these (2 and 3) are the same concerns raised by the Committee to Bridge the Gap Technical Review, so I will consider them in detail. The US Ecology rebuttal to concern about migration through the vadose zone was simply that "analyses … demonstrate that the movement of radionuclides from the disposal trenches to the groundwater is, for all practical purposes, impossible." Given this categorical denial, the Wilshire Report outlines six weaknesses in the characterization of the problem by dump proponents—there are deficiencies concerning 1) material complexities of the vadose zone; 2) large variances in the data; 3) geophysical surveys; 4) sampling; 5) transmission along preferred pathways; and 6) analysis of tritium, deuterium and carbon–14 data.

First, material complexities of the vadose zone refers to the fact that proponent models failed to factor in the variable nature of the unsaturated ground above groundwater. Their methods assumed both uniform and constant stratigraphy, ignoring the many gravel and gravelly sand beds encountered when drilling on the site. These stratigraphic complexities are very important to estimate the speed at which contaminated water could migrate to the groundwater. Second, concern about data variance is primarily aimed at estimations of the hydraulic conductivity of the vadose zone. For instance, laboratory experiments to establish conductivity used samples packed to the average density, rather than to represent the range, thereby eliminating the highest conductivities, which could in situ bypass areas of lower conductivity. So rather than use field data, the proponent’s models used unvalidated estimations of hydraulic conductivity that ignore the complexity of the site. Ignoring pertinent field data was the basis for the third concern as well. Field measurements showed higher soil moisture contents may be significantly higher than expected along the east side of the site. These data are not explained or considered in the model for radionuclide migration. Fourth, Wilshire, Howard and Miller do not believe that the soil samples of the site are sufficient to generalize about the stratigraphic structure of the site. Fifth, the model for radionuclide migration does consider movement along fractures or heterogeneities in the soil even though the literature suggests that perhaps all deep recharge takes place along fractures. Proponents make a blanket claim that the site has no fractures, which, given the paucity of samples, is merely an unsubstantiated assertion. Sixth, the tritium data (discussed earlier with reference to the Committee to Bridge Gap Technical Review) suggest that water may migrate as fast as one meter per year. In the absence of data to address these concerns Wilshire, Howard and Miller urge that the most conservative estimate of percolation indicated by actual data be used: 4 meters per year.

With regard to the potential contamination of the Colorado River the Wilshire Report elaborates on the comments made by the CBG Technical Review. They adduce data that suggest at least five different pathways by which the Ward Valley groundwater could ultimately drain to the Colorado River. These potential routes become much more important given the uncertainties about migration from the dump to the groundwater. US Ecology’s argument had been that connection to the Colorado River (which they categorically deny) was moot because the groundwater could not be contaminated in the first place.

Who is an Expert?

The Committee to Bridge the Gap Technical Review and the Wilshire Report have sparked considerable conflict. At the root of these conflicts seem to be conflicting ideas about the credibility of the scientists involved. The proponents claim that those criticizing them are renegade activists, unqualified to address the issues, while the critics maintain that their arguments are scientific, and if investigated, the truth will become apparent. This, like the other examples discussed in this chapter, is a fight over roles—the proponents try to convince the public and the legal system that they are the experts and that critics are unqualified while critics maintain the high ground of superior science.

Clearly dump proponents have been successful in defining the issue of potential contamination as scientific. The responses to public comments to the DIES/R were similar to those comments about the desert tortoise. "Comment noted" was the stock response to visceral claims that nuclear waste just doesn’t belong twenty miles from the Colorado River. And in fact, no one seems to contest the definition of the problem as one of science. While I return to that issue later, consider for the moment what the issue becomes, one of identifying which scientists are qualified to speak on behalf of the geology of the Ward Valley basin. Nowhere is the question of who gets to play the role of the expert more evident than in the conflict over the Wilshire Report.

The authors of the Wilshire Report initiated their participation in the Ward Valley conflict by offering their expertise to the Secretary of Interior. Because their action was their own initiative, and not an order by their superiors, the deputy for Secretary Babbitt asked that they respond as individuals. Their initial memo to the Secretary was just that. The subsequent response to US Ecology’s rebuttal (the Wilshire Report) was also written as individuals. The acting director of the USGS did not want to make it a peer reviewed report because it might have "led to accusation that we were trying to gag them, [which] would have detracted from the important discussion of the merits of the Ward Valley site…" (Wilshire et al. 1993:2). So the Wilshire Report was distributed with the disclaimer, "This report does not represent the policies or positions of any government agency. It does represent the professional judgments of its authors who are employed by the U. S. Geological Survey as research geologists. The report has been reviewed by professional scientists in geology, hydrology, isotope geochemistry, and soil physics, and has been modified by consultation with many experts in these fields within and outside of the USGS." Clearly the geologists are not working as citizens; the only thing that differs about their report from a USGS official report is that it was not officially "peer reviewed" by the organization. Unofficially, it was reviewed by three USGS researchers (a geologist, an isotope geochemist, and a geophysicist).

Even given the extensive review and support of the Wilshire Report inside the USGS, the response of US Ecology was that the "memo is an unfortunate example of the ability of advocacy groups to use the good name of the [USGS] for such political purposes." Furthermore, US Ecology vice president Steven Romano continued to assert that "The issues have been looked at by credentialed people who have independence, people other than US Ecology, and the consensus is that the project poses no danger to public health" (Clifford 1993b). The tactic of dump proponents is clear; the critics, no matter how qualified, are politically motivated, while the US Ecology scientists are the experts.

The integrity and ability of the USGS scientists was not even supported by the top brass of the agency. In a letter to the New York Times, USGS Acting Director Robert Hirsch noted that an article (Reinhold 1994) had erroneously described the Wilshire report as "from the United States Geological Survey." He reiterated that "It was prepared by three employees of the Geological Survey and represents their personal views only. It has not been subject to Geological Survey peer review, which is standard procedure for the nearly 2,000 official reports we issue each year" (Hirsch 1994). He went on to claim that the Ward Valley had been identified as a favorable site for radioactive waste disposal by the USGS in the 1980s.

U. S. Senator Barbara Boxer from California responded to Hirsch in another letter to the New York Times. Boxer points out that it was Hirsch himself who forbade the peer review of the Wilshire Report. The evidence that the USGS found the Ward Valley to be favorable is equally two–faced. The report referred to by Hirsch was only meant to designate broad areas that should proceed to more specific investigation (Boxer 1994). The Senator concludes that "Mr. Hirsch seems committed to squelching an objective analysis of the proposed Ward Valley dump" (Boxer 1994).

Thus far we have seen examples of three areas where the conflicts over Ward Valley seem to be as much issues of assigning and defining roles as they are quests for scientific knowledge. But do these fights over roles really influence the legal process set out by federal and state laws? I contend that they do, and in the next section I show how these three conflicts, and the appeals to a collective narrative matrix therein, have influenced the playing out of the Ward Valley proposal through the official actions of the federal and state governments, and in the courts.

The Legal Trail

In the previous sections of this chapter I described in detail three areas of conflict over the Ward Valley nuclear dump. I emphasized how the proponents have attempted to coerce actors in the conflict into pre–defined roles to further the interest of building the dump. The purpose of this section is to show how important these roles are to the legal process facing the dump. If the legal system, and the science on which it relies, were independent of society the proportion of medical waste in the stream destined to fill Ward Valley and the time it would take tritium to migrate to ground water would be easily determined and the rationally evaluated by the appropriate regulatory agencies. This is not the case. The legal trail left by the Ward Valley project indicates the importance of these issues—the desert tortoise, tritium, and the waste stream have all had significant effects on the legal battles over the Ward Valley nuclear dump.

As outlined in Chapter Two, the choice of the Ward Valley site was made in 1988, by US Ecology. The first legal barrier to the site came in 1991, when the State Lands Commission threatened not to obtain the land for the dump from the Bureau of Land Management, unless the US Ecology were held responsible in perpetuity for the site (Greenberger 1991; Stammer 1991b). DHS then ordered its attorneys to find a way around the State Lands Commission for transfer of the land (Stammer 1991c). The State Lands Commission faded from the scene.

In March of 1992, the California Senate blocked approval of Governor Pete Wilson’s Cabinet Secretary on Health and Welfare until Wilson agreed to a safety hearing for the dump. The opponents in the Senate claimed that major safety concerns had been brushed aside by the Wilson Administration, including the potential for water leaching into the drinking water for Southern California (Los Angeles Times 1992a). The blockage ended in a compromise in April, when Wilson agreed to hold a "quasi–judicial" hearing on the dump; the issue of most concern for the hearing: groundwater contamination.

Then, in July of 1992, without waiting for the hearing, the Department of Health Services requested transfer of the site from the BLM, bypassing the State Lands Commission. The action came one day after dump proponents sued the state, charging that it had unduly delayed a decision on construction (Stammer 1992b; Miller 1993). Opponents then filed a suit that would halt the transfer (La Ganga & Ingram 1993).

Action picked up as out–going Secretary of Interior Manuel Lujan announced on January 7, 1993 that he would sell the land for the dump to the state (Dolan 1993). A Federal District judge ruled on January 19 that Lujan could not transfer the land, the result of a suit filed by opponents arguing that the transfer would violate the Endangered Species Act, because the site was desert tortoise habitat (Dolan 1993a). A separate suit was filed on January 19, by Controller Gray Davis, the City of Needles and the Committee to Bridge the Gap to stop the transfer on grounds that the National Environmental Policy Act had been violated because the EIS received inadequate review and public comment (Dolan 1993a; La Ganga and Dolan 1993).

Legal action to stop the transfer became less important as the new Secretary of Interior Bruce Babbitt halted federal plans to sell the site to the state on February 19, 1993 (Dolan 1993b). Babbitt reportedly would require a review of the environmental assessment and seek more public comment before deciding whether to sell the land (Los Angeles Times 1993b). As 1993 wore on the issues of medical waste and groundwater were gaining attention (e.g., La Ganga 1993; Wall Street Journal 1993a). In May the state Court of Appeals ruled that the Wilson Administration had no obligation to hold hearings on the safety of the dump or the liability of the state (La Ganga and Dolan 1993). In August Secretary of Interior Babbitt requested that the state hold a formal public hearing, making it a condition for transfer of the land. Of primary concern was the issue of radioactivity being spread from the dump, potentially to the water supply. This action made the Court of Appeals ruling about a hearing moot, a decision that was later upheld by the California Supreme Court (Dolan 1993c).

Governor Wilson agreed to the public hearing and the site was licensed by the Department of Health Services on September 16, 1993. The action came one day after medical industry representatives lobbied the Governor for approval of the site (Ellis and Cone 1993). The hearing, however, would not allow discovery, meaning that the public would not have access to secret DHS documents about the facility.

But before the hearings could even be scheduled, Babbitt approved the supplemental environmental report for the dump, an action that appeared to opponents to approve the site (Cone 1993). Babbitt countered that if and "new credible facts" were raised in the hearing the new findings would be published as well (Cone 1993). But with the no discovery condition made by Wilson, new data would not be forthcoming (Saxon 1993). It seemed as if the roadblocks to the dump had fallen.

Then in October of 1993 Senator Barbara Boxer made the Wilshire Report public, and accused the state of covering up its importance (Clifford 1993a). Under the pressure of concerns about contaminated groundwater Babbitt changed his position again in November, this time blocking the land transfer until all environmental litigation about the site was resolved (Clifford 1993b). Babbitt referred to two lawsuits filed in October—one by the City of Needles, and one by the Fort Mojave Indian Tribe, the Southern California Federation of Scientists, Physicians for Social Responsibility and Committee to Bridge the Gap with Senator Boxer as amicus—arguing that the Wilson Administration did not address key environmental issues when issuing the site license (Los Angeles Times 1993d).

Although the fate of the dump at this point would seem to have been a matter only of legal concern, it is at this point that public debate became more heated and visible. Concerns centered around two issues, medical waste (Los Angeles Times 1993e, 1994a, 1994b; Marcus 1994a, 1994b; Clifford 1994a; Saxon 1994a; Budin 1994; Plotkin 1994) and groundwater (Miller 1993; Reinhold 1994; Hirsch 1994; Boxer 1994; Bowen and Katz 1994; Clifford 1995).

In February of 1994 Babbitt announced his commitment to block the land transfer until all legal issues are resolved, predicating his decision on "a review of the environmental assessment of the transfer and wider public comment as to the project’s merits" (Facts on File 1993). In May, Los Angeles Superior Court Judge Robert O’Brian ruled on the case brought by the Ft. Mojave, Los Angeles Physicians for Social Responsibility, Southern California Federation of Scientists, and Committee to Bridge the Gap, that the state had not adequately addressed scientific arguments that radioactive materials could leak into the Colorado River (Clifford 1994d; Los Angeles Times 1994c). This ruling dictated that the state must prepare a rebuttal to the Wilshire report that satisfies Judge O’Brian.

In July, Babbitt commissioned a National Academy of Sciences panel to investigate the possibility of radionuclides migrating to the groundwater (Clifford 1994f; Saxon 1994b). As yet the panel has not issued its final report, but it has generated substantial controversy itself (Los Angeles Times 1995; Clifford 1995). That the National Academy of Sciences is controversial, or even accused of bias is emblematic of the nature of the whole Ward Valley conflict, so I take a moment to look at the panel and analyze the legal history given in this chapter.

The National Academy of Sciences panel was controversial from its inception. Dan Hirsch of CBG called it a "rigged jury" because several members of the panel have ties to the nuclear industry (Clifford 1994f). The LAPSR reported that "The … panel … appeared stacked with pro–nuclear, pro–dump advocates. In reviewing their degrees and affiliations it was startling to discover that many worked or had worked for nuclear facilities in their career. At least five are currently employed by nuclear waste generators who would send their waste to Ward Valley" (Saxon 1994b). In April of 1994 Senator Boxer, Senator Bryan of Nevada and seven members of the academy itself complained to the academy president that the makeup of the Ward Valley panel, and other site review panels is weighted heavily in favor of dump proponents (Clifford 1995). A Los Angeles Times editorial echoed concerns of conflicts of interest on the panel (Los Angeles Times 1995). The President of the NAS responded that the panel had been selected to avoid conflicts of interest, and to include strong scientific credentials. He reported that the Ward Valley panel’s report was under outside review by a group of "independent experts" appointed by the NAS president himself. He concludes that "each of our current studies is being conducted according to the academy’s highest standards of independence, scientific accuracy and objectivity" (Alberts 1995).

By now, this sort of argument should be familiar to the reader of this thesis. Although the prestige of the involved institutions is greater, the argument is the same as comments made on the initial EIS/R. There is what seems to be an interminable conflict over who is qualified to assess the situation. What is most ironic is that throughout arguments over conflict of interest and who is qualified to be an independent expert, both sides appeal to science for vindication of their positions. While conflicts of interest certainly are important, if what I have argued in this thesis is true, the scientific facts will not give a clear–cut indication of whether or not the Ward Valley dump should be built. Assume for a moment that science could predict the future of the Ward valley dump with 99.9% accuracy, and that we knew that minute amounts of radiation would leak to the ground water in 10,000 years, and into the Colorado River in 20,000 years. Even with this knowledge US Ecology, DHS and BLM would still support the dump and the residents of Needles along with Committee to Bridge the Gap, Los Angeles Physicians for Social Responsibility and Southern California Federation of Scientists would oppose it. The decision to build a dump in the Ward Valley is a moral decision, and as I have argued, more likely to be influenced by the degree to which the roles set out by project proponents and opponents resonate with the narrative matrices of the politicians charged with making the decisions and the public than by the sort of quantitative weighing of risks and benefits that risk assessment implies.

Chapter 5