State Must Find Nuclear Dump Site, Court Says

The Supreme Court on Friday upheld key portions of a federal law requiring California and other states to find a disposal dump for low-level nuclear wastes by Jan. 1.

The court ruling--which also struck down one portion of the law that would take effect in 1996--is likely to increase pressure on state officials in Sacramento to license the building of a proposed dump in the Mojave Desert near Needles.

The construction of that facility has been delayed by state Senate Democrats, who have raised questions about the safety of the proposed Ward Valley dump.

But Friday’s ruling means that if no disposal facility is built, the state’s 2,254 producers of radioactive waste--including hospitals, bio-tech centers and nuclear power plants--could find themselves with nowhere to dispose of this waste after Jan. 1.

In the Low-Level Radioactive Waste Act of 1985, Congress gave the states seven years either to find a regional dump for such wastes or build one of their own.

Before that, only three states in the nation--Nevada, Washington and South Carolina--had dumps for such wastes, and all three were threatening to refuse further out of state shipments.

In a compromise engineered by the National Governors’ Assn., the other states agreed to a Jan. 1, 1993, deadline for finding or building their own waste dumps.

After that time, states are authorized to refuse to accept radioactive waste shipments from outside their boundaries.

By a 9-0 vote Friday, the Supreme Court upheld the 1993 deadline and the authorized state roadblocks to incoming waste shipments.

The law is constitutional because Congress gave the states a choice, said Justice Sandra Day O’Connor for the court.

“States may either regulate the disposal of radioactive waste . . . by attaining local or regional self-sufficiency, or their residents who produce radioactive waste will be subject to federal regulation authorizing states (which have their own dumps) to deny access to their disposal sites.”

However, the court on a 6-3 vote struck down a separate portion of the law. Congress mandated that after 1996, states that do not find a disposal site would be given legal responsibility for all the wastes produced in the state.

“In this provision, Congress has crossed the line,” O’Connor said, “by infringing upon the core of state sovereignty reserved by the 10th Amendment.”

This amendment, a favorite of states’ rights advocates including O’Connor and Chief Justice William H. Rehnquist, says that the “powers not delegated to the United States by the Constitution . . . are reserved to the States.”

The ruling in the case of New York vs. U.S., 91-543, removed a club that hung over state officials. But as a practical matter, the portions of the law that were upheld are more significant, legal and environmental experts said Friday.

“This decision doesn’t alter the fact that California will have to go somewhere to dispose of its nuclear waste. And the other states are going to be shutting their doors,” said Holmes Brown, a nuclear waste expert who worked on the 1985 legislation for the governors’ group.

“It’s hard to know how this will play out. But in six months, all those bio-tech companies and research hospitals in California could find themselves with no place to ship their low-level wastes.”

The 1985 law encouraged the states to form regional compacts to dispose of their wastes. California joined with Arizona, South Dakota and North Dakota in plans to construct the dump in the Ward Valley at a site 22 miles west of Needles. While the facility would take radioactive waste from medical labs and aerospace factories, it would not contain such highly contaminated waste as the spent fuel rods from nuclear reactors.

Nonetheless, critics have questioned whether these low-level wastes can be dumped safely, and in April the dispute over the Mojave dump flared into the open in Sacramento.

State Senate Democrats refused to confirm Gov. Pete Wilson’s choice to head the state Health and Welfare Agency unless he agreed to hold further hearings on the dump’s license application. The nominee, Russell Gould, was confirmed, but the hearings have not been held yet, department officials said.

“There is no chance the site will be open in January,” said Steve Romano, vice president of US Ecology, an Agoura Hills-based company that plans to operate the Ward Valley dump.

Opponents of the Ward Valley site took some comfort from Friday’s ruling, but doubted it would halt the state’s plans.

State officials agreed with that assessment.

State and industry officials could press Congress to relax the Jan. 1 deadline.