Judge Again Rejects State Radioactive Waste Plan

For the second time in three months, a judge has rebuffed efforts by the administration of Gov. Gray Davis to allow waste from decommissioned nuclear facilities that may contain radioactive material to be shipped to ordinary landfills.

The ruling Thursday by Sacramento County Superior Court Judge Gail D. Ohanesian requires the state to forsake a recently adopted federal radiation standard. That standard was at least 10 times more permissive than one that would have governed waste slated for the Ward Valley low-level nuclear waste facility near Needles, Calif. The Ward Valley site was abandoned because of opposition from, among others, Davis before he was governor.

The ruling Thursday came in response to a lawsuit by anti-nuclear activists who argued that the state’s policy would allow dangerous radioactive waste to be dumped in community landfills that lack appropriate safeguards.

Ohanesian’s order also requires the state to submit all recent or pending decommissioning actions for review by the judge, in part to determine whether any such waste already is in municipal landfills.

The decision leaves the state in a bind over how to define a “clean” former nuclear site. What is certain is that the state Department of Health Services cannot formally adopt the federal government’s standard without public hearings or an environmental study that weighs other alternatives.

The judge’s decision essentially restates a writ issued in May, when she ordered the state to vacate its new regulation.

The state continued to operate under its new rule, arguing that California was required by federal law to enforce at least the federal standard until a new regulation could be written.

The judge rejected that position Thursday. Though not ordering the state to stop decommissioning sites, Ohanesian reserved the right to review current or pending decommissionings.

“This is sending shock waves through the administration,” said Dan Hirsch, president of the Committee to Bridge the Gap, one of two anti-nuclear groups that sued the state over the regulations. “They thought they could keep doing it.”

The state’s top radiologic health official said Thursday that his agency would continue decommissioning nuclear facilities on a case-by-case basis, opting to keep radiation “as low as reasonably achievable.”

Whether any radioactive material from former nuclear sites wound up in landfills since the state adopted the new rule in November is uncertain.

“I don’t have any knowledge as to what happens to material once a site is decommissioned,” said David M. Souleles, chief deputy director of programs at the Department of Health Services.

Hirsch said he believes that several thousand tons of radioactive waste were shipped to the Bradley Landfill in the San Fernando Valley over the last few years, and several hundred tons of metals from the former Santa Susana Rocketdyne nuclear reactor site were sent to a recycler in the same period.

State regulations do not prescribe any specific radiation level for landfills, said state Deputy Atty. Gen. Barbara Sheldon, who defended the state against the suit.

However, rules in place before the federal standard was adopted in November say that all radioactive contamination should be eliminated, and do not allow disposal in anything but a licensed radioactive waste site, Hirsch said.

To set a specific standard, the Davis administration would have to begin an environmental impact process that considers more stringent benchmarks than the federal ones.

Alternatively, the Legislature could adopt its own standards. Two bills setting stricter radiation levels are pending.

Activists like Hirsch are concerned that under the current federal standard, a “hot” item could be unearthed and sent to a landfill unequipped to contain it.