Smoke and Mirrors? 

Critics fear the nuclear incinerator fight isn’t over yet

It seemed like an easy victory that opponents of a nuclear waste incinerator won against the Department of Energy (DOE) this spring: Within weeks of the planned groundbreaking for the incinerator in central Idaho, the feds signed a settlement agreement to set up a “Blue Ribbon” panel of scientists to study alternative ways of dealing with the unique mix of plutonium and PCBs waiting to be disposed of. Anti-incinerator groups fought the proposal for less than a year before the DOE acquiesced—all it took was the threat of facing famed attorney Gerry Spence in the courtroom, a flurry of national news coverage, and five little words: “upwind of Yellowstone National Park.”

Both sides hailed the agreement as a win-win situation. The DOE could go ahead and process the vast majority—up to 97 percent—of the waste languishing at the site and move it to a permanent storage facility in New Mexico, while its panel looked for innovative ways of treating the remainder without tossing plutonium and dioxins into the air. The agency is working under the gun of a 1995 agreement with the state of Idaho that sets a deadline for removing 65,000 cubic meters of mixed waste stored at the Idaho National Engineering and Environmental Laboratory (INEEL) facility by 2018, and had planned to treat an additional 55,000 cubic meters of hazardous material from other sites around the country.

The plaintiffs, which included Keep Yellowstone Nuclear Free (KYNF) of Jackson, Wyo., the Idaho-based Environmental Defense Institute, the Snake River Alliance, Jackson Hole Conservation Alliance, and the Sierra Club, were to name two of the panel members and then wait for the scientists’ recommendations come the December deadline. The groups also got $150,000 for legal fees and some assurance that the government would not burn high-level radioactive waste from around the country in their back yards.

Or so they thought. Recent maneuvers by the agency have raised fears that the DOE is acting in less than good faith.

When the DOE appointed seven representatives to the panel at the end of April, the members included three attorneys, three people with experience in environmental policy issues, and one scientist. Erik Ringelberg, the new director of KYNF, says this set off alarms within his group.

“Essentially they had promised the composition of the panel would be seven, and it’s currently nine. They did not inform us of that. And what’s the purpose of having three attorneys and other people with non-technical backgrounds?” he asks. “The Blue Ribbon panel, from our understanding, was not meant to be a policy analysis group.”

DOE spokesperson Jacquelin Johnson defends the appointments, saying that any plan to deal with INEEL’s waste will have to meet regulatory standards. And, she adds, there is one Nobel laureate in the group—chemist Mario Molina, who pioneered a theory that fluorocarbons deplete the ozone layer. But while the settlement specifies that the DOE will examine both “regulatory and technological alternatives to incineration,” the panel is charged only with the latter.

Adding to the activists’ suspicions was a statement by a top INEEL official just the week before the panel members were named. INEEL Deputy Manager Warren Bergholz told the editorial board of the Twin Falls Times-News that after all is said and done with the Blue Ribbon panel, “chances are probably better than ever that we will be back on this incinerator track.” The DOE immediately issued a statement reassuring that “the Idaho Operations Office will fully support the work of the Blue Ribbon Panel in identifying potential alternatives to incineration, without prejudice.”

But the damage was done. Now, says Ringelberg, incinerator opponents feel they are being left out of the decision-making loop. “I have yet to receive any communication from DOE. Not to put too fine a point on it,” he says. “They have our phone number, e-mail address, mailing address, and I have not received any direct communication from the DOE at any level in regards to the Blue Ribbon panel.”

Ringelberg’s group, along with the other plaintiffs, agreed to drop their lawsuit under the terms of the settlement agreement, but may re-file it if they feel the DOE has broken its word.

The settlement had a number of other repercussions. When DOE officials originally made plans to build the incinerator, their options were limited because the Environmental Protection Agency required that PCBs either be incinerated or landfilled, and there was no landfill that accepted radioactive waste. The intended nuclear waste depository in New Mexico could not accept untreated PCBs, nor could the DOE transport them legally. With the delay caused by the lawsuit, the EPA has had a chance to review that rule, and incinerator opponents expect the regulations to be relaxed.

Another change, according to DOE spokesperson Brad Bugger, is that the agency no longer plans to send radioactive material from other sites to INEEL. “If we don’t incinerate,” he says, “it’s unlikely that we’d accept material from other sites because that was the major reason for doing so—our ability to incinerate.” Bugger points out that the agency’s contract with British Nuclear Fuels Limited (BNFL), the company that won the bid to build the incinerator and treat the waste, still includes a provision that BNFL will deal with waste from other facilities.

BNFL, meanwhile, had a rather difficult winter. The company admitted faking safety checks on plutonium fuel rods sent to Japan, and has come under investigation for “misreporting” radiation charges in England and for leaking radioactive waste into a stream in Scotland.

Bugger says U.S. Secretary of Energy Bill Richardson has authorized an “independent evaluation” of BNFL, and expects the results sometime soon.

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