Robert Alvarez, a senior scholar at the Institute for Policy Studies, with several decades' experience in critical analysis of Department of Energy (DOE) operations, reports in The Nation August 18, 2003 an accurate account of the crucial environmental, health and safety issues faced by Northwest residents living in the shadow of DOE's nuclear facilities.

" In mid-October of 1805, after being saved from starvation by nearby Indians, the exhausted Corps of Discovery led by Captains Lewis and Clark finally reached the Columbia River Basin -- gateway to the Pacific. The success of their two-year quest to chart the nascent American Empire was now assured. As the powerful current pushed their canoes to the ocean, they entered the high sagebrush desert, teeming with deer, elk and wild horses. They were astonished by countless salmon, some weighing over 100 pounds, in the crystal clear water -- more than in any river of the world.

"While camping nearby, Clark wrote in his journal, 'We were obliged for the first time to take the property of the Indians without consent or approbation of the owner.' He reasoned that 'the night was cold and we made use of a part of those boards and Split logs for fire wood.' Before, Lewis and Clark had scrupulously 'made it a point at all times not to take any thing belonging to the Indians.' But the temptation was too great, setting an ominous precedent.

"On January 16, 1943, Gen. Leslie Groves, the military leader of the Manhattan Project, chose Hanford, in eastern Washington near the Lewis and Clark campsite, for the world's first large nuclear reactor. The area, the traditional wintering grounds of many Indian people, offered key elements Groves was looking for: plenty of water and electricity from the Columbia River dams, and sufficient isolation that nuclear accidents were regarded as tolerable. The Indians were promptly banned from their homes and from religious, fishing and medicine-gathering sites and farmers were uprooted. Within about two and a half years the Hanford 'B' reactor had made enough plutonium to destroy Nagasaki, Japan, on August 9, 1945.

"Over the following fifty years, until it was closed down in 1990, Hanford's 570-square-mile nuclear complex continued to produce not just plutonium but massive contamination. There were many large releases of radioactivity, particularly iodine-131, which rapidly contaminates air, vegetation and milk supplies. Because it is absorbed mostly in the body's thyroid gland, radioactive iodine has been linked to thyroid cancer and other types of thyroid damage. Between 1944 and 1947, more than 684,000 curies were released (the accident at Three Mile Island released about fifteen curies). In addition, some 440 billion gallons of contaminated liquids were directly disposed into the ground at Hanford -- enough to create a poisonous lake the size of Manhattan, more than eighty feet deep. Hexavalent chromium, a well-known carcinogen, is now being found to damage fish in the river, while large amounts of radioactive contaminants were spread down the Columbia River and to parts of the Pacific Ocean along the coasts of Oregon and Washington. According to Timothy Jarvis, a scientist then with the Energy Department's Pacific Northwest National Laboratory, enough dangerous materials were dumped at Hanford to have 'the potential to induce cancer in every person currently on the planet, 208 million times over.'"

"In the late 1980s, the federal government finally acknowledged its responsibility for Hanford and other similar sites around the country and began the largest, most expensive and most challenging environmental cleanup program in US history. As Senator John Glenn put it in 1988, 'What good does it do to defend ourselves with nuclear weapons, if we poison our people in the process?' Spurred on by angry citizens, states, 'downwinder' lawsuits and Congressional pressure, cleanup operations continued over the next decade.  Since 1989, more than $60 billion has been spent for the DOE cleanup, and an additional $200 billion is estimated as needed to deal with the daunting environmental legacy of the nuclear arms race over the next several decades. Hanford's budget alone is bigger than the Environmental Protection Agency's entire Superfund program.

"Now, however, the DOE is proposing to terminate its environmental mission at Hanford, the most contaminated area in the Western Hemisphere, as well as at other sites. Seeking to free up tens of billions of dollars for other military purposes, the DOE, in an Orwellian sleight of hand, is attempting to redefine more than three quarters of its most dangerous radioactive wastes by renaming them as 'incidental'-- this despite the fact that the National Academy of Sciences said in a May 2003 report that the hazards 'will persist for centuries…millennia…or essentially forever.'"

"Meanwhile, the Hanford downwinders, whose David and Goliath legal battles against the federal government have been thwarted at every turn, continue to suffer. 'The people in this area have been forced into poverty, they fall through the cracks and they die,' says Kay Sutherland, who suffers from numerous cancers and has seen terminal disease kill five members of her family. 'I am a Holocaust survivor of the American cold war.'"

Poisoned Fish, Poisoned People

"The legacy of Hanford is grim. Thousands of Indians eating chemically contaminated fish from the Columbia River near the plant have very high risks of contracting diseases. In August 2002, the Columbia River Basin Fish Contaminant Survey, a study conducted by Indian tribes and the EPA, reported that non-radioactive contamination, such as PCBs in fish-which are eaten in far greater numbers by tribal people than by non-Indians-are found at the highest levels in the section of the river that runs through the site known as the Hanford Reach. According to the study, tribal children eating fish from the Hanford Reach have 100 times the risk of auto-immune diseases and central nervous system disorders as non-Indian children. Risks of contracting cancer among tribal people from eating fish from this stretch of the river were estimated to be as high as 1 in 50.

"The DOE and its contractors blame metal mines in Canada and other sources for these high levels. But tribal people believe the US government is the main source of this and other problems. 'During the fifty years of Hanford's operation, especially when the river was highly contaminated by the reactors, the site managers knew full well that tribal people were being poisoned. But they simply ignored their own data and considered us to be expendable,' says Russell Jim, director of the Environmental Restoration and Waste Management Program for the Yakama Nation.

"Tribal members aren't the only ones to suffer. About 80 percent of Chinook salmon, an economic, environmental and cultural icon of the Pacific Northwest, spawns in the Hanford Reach, and they represent a significant portion of wild salmon harvest in British Columbia and Alaska. Hexavalent chromium, made familiar to the public by the movie Erin Brockovich, has spread from the Hanford site into salmon spawning beds. 'We still are unaware of the magnitude of the calamity which lies beneath the surface lands of the Hanford Reservation,' said Bill Robinson, formerly of the Washington Council for Trout Unlimited. In an October 2000 study of the impacts of chromium on salmon in the Hanford Reach, the US Geological Survey found that the 'physiological effects from [chromium]' included 'histological lesions in [the] kidney…associated with elevated doses…and reduced growth and survival.'"

"In addition to the massive dumping, Hanford spread very large amounts of radioactive gases and particles over the countryside. During a site visit in 1951 by a panel of health experts from the DOE's predecessor, the Atomic Energy Commission, a Hanford official warned that radioactive releases posed 'a very serious health problem.' In a 1999 National Institute of Environmental Health Sciences study, researchers stated, 'We found an epidemic of juvenile hypothyroidism among a population of self-defined 'downwinders' living near the Hanford nuclear facility.' The study came several months before federal judge Alan McDonald --named last year by Reader's Digest as one of the nation's worst federal judges --had dismissed nearly all 5,000 claims that had been filed by Hanford downwinders in the early 1990s, ruling that the plaintiffs had to show they received enough radiation, based on DOE estimates, to double their risk of contracting cancer.

"In June 2002 the US Court of Appeals for the 9th Circuit overturned McDonald, stating, 'Radiation is capable of causing a broad range of illnesses, even at the lowest doses.' But that same month the Centers for Disease Control released a second revision of a study it had performed, which concludes that there are no excess thyroid cancers among people who lived near the site. The study drew substantial criticism from a National Academy of Sciences panel, which found that 'investigators probably overstated the strength of their finding that there was no radiation effect.'"

Defining Away Disaster

"The Bush Administration recognized early on that one way to free up more military funds for projects it wanted to pursue was to spend fewer dollars on environmental cleanups. The biggest savings, it concluded, would come from less costly burial procedures for high-level radioactive wastes. Generated by the chemical separation of plutonium and uranium from spent reactor fuel, about 100 million gallons of such wastes have been stored for several decades in leaking underground tanks larger than the Washington State Capitol dome. In addition to remaining hazardous for hundreds of centuries, these wastes, more than half of which are stored at Hanford, give off lethal penetrating radiation, even in tiny amounts. Everything they come into contact with becomes radioactive and dangerous. For instance, dangerous penetrating radiation from a small capsule of Hanford's high-level radioactive waste, if placed in a crowded area such as a restaurant, could kill nearly everybody there in five to ten minutes.

"The single most expensive cleanup technology is vitrification, a complex process involving heavy shielding and extensive remote handling that converts long-lived nuclear wastes into glass logs for permanent geological disposal. In November 2001 Jessie Roberson, the DOE's Assistant Secretary for Environmental Management, informed the agency's budget office that her top cost-cutting objective was to eliminate the need to vitrify at least 75 percent of the waste scheduled for vitrification. How? The department simply redefined away the hazards of the most dangerous wastes by calling them 'incidental'-- meaning they can be mixed with cement and buried in shallow pits or just abandoned.

"On July 3 Idaho US District Judge B. Lynn Winmill struck down the DOE's plan as illegal. Ruling in a lawsuit brought by the Natural Resources Defense Council, the Yakama Indian Nation, the Shoshone-Bannock Tribe and the Idaho-based Snake River Alliance, the judge stated that the DOE cannot reclassify these wastes through a 'whim' and must process them for geological disposal.  'If the decision stands,' says department spokesman Joe Davis, 'it could lead to a tremendous burden on the taxpayers and jeopardize our ability to clean up our sites sooner.'  But, notes NRDC attorney Geoff Fettus, 'If you follow the DOE's arguments to their logical conclusion, we might as well dispose of the equivalent of several thousand tons of spent commercial reactor fuel in unlined shallow burial near important water supplies.'"

"The decision has also taken some momentum out of the nuclear industry's Congressional victory last year, which allowed the DOE to proceed with the construction and licensing of a permanent high-level radioactive waste repository at Yucca Mountain. Billions of defense funds have gone ostensibly to prepare for the storage of the DOE's nuclear weapons wastes at Yucca Mountain, but in reality the facility appears intended mainly for use by commercial nuclear power companies (including the bankrupt Enron Corporation), which have powerful friends in both the White House and Congress.  If the DOE is required to proceed with its original plans for high-level military waste disposal, thus using up Yucca Mountain's storage capacity, the nuclear power industry will not have enough room to dispose of its burgeoning inventory of spent reactor fuel. True to form, DOE Assistant Secretary Roberson asked Congress on July 17 to overturn the decision.

"The Bush Administration has been aided in its efforts to downplay environmental risk at Hanford by the Competitive Enterprise Institute, which has ties to the oil and chemical industries and has attracted right-wing luminaries including House majority leader Tom DeLay. In 'From Waste to Wilderness,' a CEI report issued in 2001, author Robert Nelson advocates that the federal government abandon the current nuclear-cleanup program as 'economically wasteful and counterproductive…like the beaches fouled by the oil from the Exxon Valdez, sometimes the environmentally preferable course of action is to do little or nothing.'"

"Using terms like 'risk reduction' and 'cost savings,' the Bush Administration and the DOE are thus starting to emulate the former Soviet Union, which unabashedly wrote off large areas of land, water and people living near nuclear weapons sites.

"In addition to trying to redefine the threats represented by nuclear wastes, the Bush Administration is also trying to get out of its long-term responsibility for Hanford and other areas like it. Before the latest developments, the DOE's environmental cleanup program was based on the assumption that active remediation and waste stabilization activities would continue until 2070. After that time, the DOE was to establish an environmental 'stewardship' program for long-term management of these profoundly contaminated waste sites. But the Bush Administration abruptly canceled 'long-term stewardship' planning last year by the National Academy of Sciences, signaling its intent to walk away from the DOE's environmental problems. As a result, 'such a plan does not exist now, yet it is a critical element in the closure of all DOE sites,' Peter Maggiore, Secretary of New Mexico's Environment Department, told the Senate Energy Committee in July of last year.

The Nuclear States' Rights Battle

"Hanford is among some 169 heavily contaminated nuclear weapons production waste sites in twenty-eight states. The Bush Administration's actions are putting it on a collision course with states such as Kentucky, New Mexico, Nevada, Ohio, New York, Missouri, California, South Carolina, Idaho and Washington, which are increasingly concerned about being left with de facto 'national sacrifice' areas.

"Washington State is drawing battle lines. 'The state entered into a legally binding environmental compliance agreement with the DOE to remove and stabilize up to 99 percent of high-level radioactive wastes in Hanford's tanks,' says Christine Gregoire, Attorney General of Washington. 'We cannot allow these wastes to be permanently buried and have their dangerous radioactive plumes enter the Columbia River. DOE has not given us any credible reason why we should change this position.'"

"Further fueling opposition is the DOE's attempt to dispose of some 341,000 cubic meters of radioactive and toxic wastes from other department sites in shallow, unlined 'mega trenches' at Hanford. This would entail shipment of 43,000 truckloads of nuclear weapons wastes. According to Senator Ron Wyden, the 'DOE's accelerated cleanup plan is just a shell game that will simply move the problem across our highways in order to create an even bigger environmental, safety and health danger to the Pacific Northwest.'"

"In March of this year the State of Washington sued to block shipments of wastes from other DOE sites contaminated with plutonium and other similar isotopes from being stored at Hanford. According to the state, the department will not commit to deadlines to remove Hanford's very large inventories of buried plutonium wastes first. A state referendum campaign started by citizen groups to block the DOE from shipping wastes to Hanford is expected to be on the 2004 ballot. Not to be outdone, the DOE countersued in April. 'Recent actions by the State of Washington could have a chilling effect on cleanup operations at Hanford and elsewhere,' Roberson, the DOE official, said.

"And the DOE is using the power of the purse to get its way. In the fiscal year 2003 budget, the department has cut $800 million from its site-cleanup budgets and placed it into a 'Cleanup Reform' account, which according to the department 'will provide the stimulus necessary to reach agreement with States and regulators on new, more effective cleanup approaches.'"

"These are code words for economic blackmail,' says Gerry Pollet, director of Heart of America Northwest, a longtime Hanford citizens' watchdog group. As the nation's economic downturn continues, states are under severe financial stress and are facing difficulties just in maintaining basic services. According to Pollet, the 'DOE is cynically using the threat of budget cuts to force Washington into relaxing environmental standards, especially for DOE's most dangerous and long-lived wastes.'"

"The best hope for the people and states with DOE waste sites is to push back in the courts, elections, the news media and academic circles. Their elected state officials and Congressional delegations must be encouraged to prevent the creation of 'national sacrifice' areas that threaten our environmental and economic well-being. It was done before, in the 1980s, when these elements came together and forced the nuclear weapons program, for the first time, to come to terms with its massive environmental legacy. Tom Carpenter, of the Government Accountability Project, which has represented numerous Hanford whistleblowers, says that 'when the US government first chose to produce plutonium for nuclear weapons, it made a down payment on a vast environmental and health balloon mortgage.' That balloon mortgage has now come due. But to put things into perspective, environmental cleanup for the nuclear arms race is only about 4 percent of the $5.8 trillion spent on nuclear weapons since 1940. The costs of walking away at Hanford, as we commemorate the bicentennial of the Lewis and Clark expedition, are incalculable.'"

Undaunted by a reported 225,000 public comments objecting to the Environmental Protection Agency's (EPA) fundamentally radical changes to the Clean Air Act, the agency issued its final rule in August 2003. ⁽¹⁾ In classic Orwellian double speak, now pervasive in the Bush Administration, EPA characterizes that the new rules "will help to ensure that industries maintain safe, reliable and efficient operations that minimize air pollution." ⁽²⁾ The reality is that tens of millions of tons/yr of hazardous air pollutants will be released into the air in addition to what is already being released. The veracity of the Bush administration for telling the truth about what toxic chemicals and radionuclides Americans breathe is in question here!

The Department of Energy (DOE) played an active role in the development of EPA's new Clean Air Act rule. ⁽³⁾ This is understandable from a purely self-serving perspective since DOE operates many mixed hazardous and radioactive waste incinerators and other deadly toxic waste "treatment" plants within its nation-wide complex. These DOE operations function under bogus "grandfather" or "interim status" exemptions not only from Clean Air Act (CAA) but also Resource Conservation and Recovery Act (RCRA) emission regulations that would not survive a federal court review. In fact, each time "citizen suits" have been filed against these illegal toxic polluters, DOE has shut them down rather than lose in court.

The Environmental Defense Institute, Keep Yellowstone Nuclear Free and David McCoy filed Notices of Intent to Sue DOE, EPA, and Idaho over two mixed hazardous and radioactive waste incinerators at INEEL. DOE subsequently shut the incinerators down because there was no legal argument the agency could use to continue operating. Another Notice of Intent to Sue was filed by EDI et al. challenging several INEEL illegal mixed hazardous and high-level liquid waste evaporators.

Congress never intended the CAA "grandfather" exemption nor the RCRA "interim status" exemption to be anything but a limited "grace period" to allow existing facilities to get into compliance with emission standards. ⁽⁴⁾ Now decades later the public is still waiting for enforcement actions. The public has a justified expectation that the regulator has at least "an arms-length" distance from the polluter, but in the case of DOE operations it is more like "cheek to jowl."

Decades after passage of these environmental laws, substantive enforcement actions have yet to be implemented at federal facilities despite Congressional passage of the Federal Facilities Compliance Act in 1992 that removed sovereign immunity from compliance with environmental statutes. Congressionally mandated enforcement authority to the regulators is simply not implemented with the federal government's own pollution generators like DOE.

An example of DOE non-compliance can be found at its Idaho National Engineering and Environmental Laboratory (INEEL) that has operated for decades numerous mixed hazardous and high-level radioactive waste treatment plants. At INEEL's INTEC facility, waste concentration plants use high-temperature evaporators to reduce the deadly radioactive liquid volume of the waste that release toxic chemicals, heavy metals and radionuclides. None of these operations has ever been able to meet CAA or RCRA emission standards and are thus not operating under otherwise required permits. ⁽⁵⁾ Despite this, state and federal regulators have allowed the operations to continue operating as of this date, under bogus "grandfather" and "interim-status" categories that would never survive any judicial review. ⁽⁶⁾

Equally troubling is the State of Idaho's (with a "good-old boy" nod from EPA Region 10) approval of mixed toxic hazardous high-level waste tank closure plans that do not meet federal "clean closure" standards, and Idaho's continued acceptance of INEEL's decades-old mixed liquid radioactive waste evaporators without forcing them to comply with current federal Clean Air Act emission standards. Even EPA has cited Idaho with non-enforcement citations, yet has taken no action. ⁽⁷⁾

When Congress promulgated the Clean Air Act in 1977, existing polluters were given a limited grace period that stipulated that when the plant made any changes to its operating systems over and beyond "routine maintenance and repair" the operator must upgrade the emission controls to bring the facility into compliance with the Clean Air Act emissions regulations.

Idaho Falls resident David McCoy notes, " It is approximately three years since we complained about the operation of the INEEL Liquid Waste Management System components lacking final RCRA permits. How much longer do EPA, DEQ and DOE believe that they can continue bamboozling the public in the operation of these dangerous facilities without meeting the requirements that are necessary for operation under final RCRA permits? This is nothing short of unlawful collusion by state and federal agencies to operate without permits. We have furnished a Notice of Intent to Sue for these unlawful operations. There is not a municipal incinerator in the US that can be run without proper permits. Why do DOE, EPA and DEQ believe that they are somehow above the law and can drag out interim status perpetually for processing nuclear waste? While EPA, DOE and DEQ may believe that no lawsuit will be filed in this matter, they had better reconsider their position and their actions soon. I for one am out of patience with an administrative process that is nothing but a snowjob on the public." ⁽⁸⁾

The Bush administration and EPA now are effectively rolling back nearly three decades of steady progress toward cleaning up America's skies. EPA's New Source Review rule will allow some 10 million more tons per year of hazardous air pollutants to be released into the atmosphere. ⁽⁹⁾ Also see Environmental Defense Institute's October 2003 newsletter on the health impacts to Northwest residents as a consequence of living in the shadow of these DOE operations.

EPA's new rule is administratively reinterpreting Congressional intent and federal court rulings on enforcement of the Clean Air Act. The statute mandates that "any changes" beyond "routine maintenance" to a major pollution source must come into compliance. ⁽¹⁰⁾ Congress never intended to indefinitely grant or "grandfather" existing polluters exemption from the Clean Air Act.

Federal district courts and appellate courts have consistently upheld the Clean Air Act (CAA) regulations by ruling that "any change" even "trivial change" to a major pollution source facility will activate the CAA emission control requirements for new construction referred to in the CAA as "New Source Performance Standard." ⁽¹¹⁾ Now EPA claims that it "does have the authority to interpret these key terms through rulemaking."

EPA's new rule offers a virtual banquet of exemptions for polluters to avoid Clean Air Act emission regulations. Senator James M. Jeffords, the Vermont independent who is the ranking minority member of the Environment and Public Works Committee, called the new rule "just one more flagrant violation of the Clean Air Act and every court's opinion on this matter." He added: "Its publication will amount to malfeasance." ⁽¹²⁾

The National Academy of Public Administrators (NAPA) issued a scathing review of EPA's new ruling that is highly critical of numerous features of the Bush Administration's air pollution agenda for the nation's largest polluters. NAPA believes that Congress should end "grandfathering" of major sources with high emission levels as soon as possible. Facilities that have not obtained a New Source Review permit since 1977 should upgrade equipment and lower pollution to levels achievable by modern pollution control measures. ⁽¹³⁾

EPA's final rule allows polluters to change their physical plants up to 20% of its total replacement cost without being required to meet current emission standards. Depending on the operation, that could mean hundreds of millions of dollars worth of changes without triggering the current emission regulations. Eliot Spitzer, the attorney general of New York, said he would file a challenge to the new rule as soon as it is signed. "A rule that creates a 20 percent threshold eviscerates the statute," he said of the Clean Air Act. "This makes it patently clear that the Bush administration has meant all along to repeal the Clean Air Act by administrative fiat." ⁽¹⁴⁾

EPA and the major polluters are not content with the 20 percent exemption and now EPA is proposing to expand the annual exemption for maintenance, repair and replacement to 50 percent or more of the facilities total replacement cost ⁽¹⁵⁾ John Walke of the Natural Resources Defense Council called even the 20 percent standard "a grotesque accounting gimmick" that would "let companies completely overhaul their plants over time and spew even more pollution than now." ⁽¹⁶⁾

Endnotes:

    1. Seelye, Katherine, Q, "Draft of Air Rule is Said to Exempt Many Old Plants," August 22, 2003 MSNews, Washington, quoting John Walke of the Natural Resources Defense Council.
    2. See EPA New Source Review website page: www.epa.gov/nsr
    3. Environmental Protection Agency, 40 CFR 51 and 52, Legacy Docket A-2002-04, Prevention of Significant Deterioration and Non-attainment New Source Review, Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion, Final Rule, August 27, 2003, page 86. The cited 10 million tons/year refers only to SO2 and NoX so the aggregate of all hazardous air pollutants would be significantly higher. Hereinafter referred to as EPA/NSR.
    4. Oppel, Richard, "Report Says EPA Aid Knew Rule Change Could Hurt Lawsuits," New York Times, October 25, 2003.
    5. Hazardous Waste Management Act / Resource Conservation Recovery Act Work Plan for INEEL, September 10, 2003, DOE/ID. Also see EDI publications, legal, regulatory initiatives at http://www.environmental-defense-institute.org
    6. Two exceptions are Environmental Defense Institute, et.al, Notices of Intent to Sue that forced DOE/INEEL to shut down the two radioactive waste incinerators (WERF and NWCF). For more information see EDI website noted in footnote above.
    7. EPA Notice in Federal Register 1/16/03 (Vol. 68, Number 11)
    8. David McCoy 10/8/03 email to Environmental Defense Institute
    9. EPA/NSR, page 17.
    10. 42 USC 7401 (Title I Clean Air Act Parts C & D Section 111 (a)(4) as cited in EPA/NSR page 124.
    11. See Tennessee Valley Authority, 9 E.A.D.35 (EAB 2000); Alabama Power, and WEPCO, 636 F.2d at 399 -400,
 that interpret "modification" and "change" and base all exclusions on a "de minimis" rational. Cited in EPA/NSR pages 130 -132.
    12. See Seelye, note # 1
    13. See NAPA website at www.napawash.org. Also see Natural Resources Defense Council's comprehensive analysis reports on New Source Review at http://www.nrdc.org
    14. See Seelye, note # 1
    15. EPA/NSR, pages 18, 20, and 41.
    16. See Seelye, note # 1