June 7, 2006

• What's New?
• Upcoming Events
• Action Alerts
• Documents
• Who We Are
• Corbin Harney
• Staff
• Contact Info

Justice Wants Hanford Initiative Tossed
By Annette Cary
Tri-City Herald, WA
May 24, 2006

YAKIMA -- The U.S. Department of Justice asked Tuesday that the Hanford waste initiative passed by voters be declared unconstitutional and overturned.

U.S. District Judge Alan McDonald listened to arguments based on written briefs filed over the last seven months, then said he would rule on the motion for summary judgment in two to three weeks.

In 2004, voters in every county of the state but Benton and Franklin approved the initiative intended to stop the Department of Energy from bringing more waste to the Hanford nuclear reservation until waste already there is cleaned up.

But before it could become law as the Cleanup Priority Act, the Department of Justice filed suit.

"The CPA is an unprecedented intrusion into federal matters and thus should be set aside," argued Kenneth Amaditz for the Department of Justice.

Congress has given the federal government the authority to manage nuclear materials because they are critical to national defense and security. But the state has been given authority by Congress to manage certain hazardous chemical waste.

The initiative targets only waste with a radioactive component, which violates the Supremacy Clause of the U.S. Constitution, the federal government argued. The clause prohibits states from regulating federal activities unless Congress has given its clear consent.

The initiative also discriminates against the federal government by singling out Hanford from other hazardous waste sites in the state, Amaditz said.

Hanford is essential to federal plans to dispose of low-level radioactive waste from across the country, said David Kaplan, attorney for the Department of Justice. The Nevada Test Site is the only other place designated for the disposal of mixed radioactive and hazardous waste from across the nation, he said. But it has limited space and will close in five years.

By barring waste from being sent to Hanford, the state is isolating itself from federal problems in violation of the Commerce Clause of the Constitution, said Colin Deihl, arguing for Fluor Hanford.

Washington is not barring waste from being imported to the state, only to Hanford as long as the nuclear reservation is not complying with state and federal environmental laws, said Laura Watson, arguing for the state. DOE could build a compliant facility in Washington if it chose, she said.

Hanford has not been singled out because it is a federal facility, but because it's the only place in the state with such massive contamination, said Andy Fitz, arguing for the state.

DOE and Hanford are registered in the Environmental Protection Agency's database as a "significant noncomplier," a designation reserved for "exceptionally poor performance and/or recalcitrant or repeat violators," the state said in court documents.

Nearly all waste at Hanford, which produced plutonium for the nation's nuclear weapons program, is a mixture of radioactive and hazardous chemical waste, Fitz said. Congress clearly has intended for states to regulate that mixed waste, he said.

"Simply having radionuclides in the mix doesn't give the federal government a get-out-of-jail-free card," he said.

The initiative does not expand the state's authority over Hanford waste, but requires it to regulate the waste to the fullest extent of its authority, the state argued.

"The voters clearly said they were tired of having exceptions carved out of generally applicable standards," said Gerald Pollet, arguing in support of the initiative for Heart of America Northwest.

If the initiative is found to overstep the state's authority, then it's just a short step further to question the state's present authority to regulate Hanford waste, Fitz said.

The question is whether the state or federal government gets to make decisions, the judge said.

There has been poor performance at the site, he said.

"But you have to admit (the federal government) has spent a gold mine of money the state did not have to spend and in many cases made real progress," he said.

http://www.tri-cityherald.com/tch/local/story/7762190p-7674498c.html